Taking care of children
Every family is different. There is currently no set formula for arrangements relating to the care of children following parents’ separation.
One of the key decisions that must be made is where the children will live and how much time they will spend in the care of each parent.
If parents are unable to agree, it is possible to seek the court’s help.
It is possible to apply to the Court for what is called a ‘Child Arrangements Order’ and this order has two purposes. It may define with whom a child will live and when the child is to live with any person. A Child Arrangements Order may also name the person with whom a child is to spend time and when a child is to spend time with that person or otherwise have contact. These orders until recently used to be called ‘residence’ and ‘contact’ orders. More historically orders defining with whom a child is to live were called ‘custody orders’, and are still called custody orders in other jurisdictions and orders formally defining how often and how long a child sees a person were previously referred to as ‘access orders’.
When determining an application for a Child Arrangements Order the court‘s paramount consideration is the child’s welfare.
Our specialist team has enormous experience in advising parents with a vast range of child issues including disputes concerning with whom a child is to live and how often they are to spend time or otherwise have contact with a person.
Are there any immigration issues?
Yes and they are very important. It is essential that you secure the appropriate permission or a visa for the child to enter the country. This will depend on whether the foreign adoption order is recognised in this country or UK court proceedings will be necessary. Always ensure you have taken immigration advice before coming to this country with a child adopted abroad.
I have been told that it is an expensive and lengthy process to adopt a child from abroad. Is this true?
Yes. The process can be lengthy, at least two years and involving several meetings here and abroad with adoption agencies, and can be quite expensive.
How can I find out about the process of adopting a child from abroad?
One of the best places for guidance is the government Intercountry Adoption website, which contains excellent guides and fact sheets.
How do I decide where to issue family court proceedings?
First, it is necessary to ascertain in which countries proceedings could be issued. This includes states or territories in some countries which have a federal basis. This is what is known as the 'countries with jurisdiction'.
Secondly, it is necessary to ascertain the outcomes in those countries with jurisdiction. This includes the final financial settlement, interim financial arrangements, the available injunctions to preserve the assets, the timetable and grounds for obtaining a divorce, any arrangements for children, the legal costs, the personal inconvenience of the proceedings being in that country, language barriers, the recognition of any orders in other countries in which one spouse may be likely to live or work, opportunities for enforcement of any orders and a number of similar factors.
The outcome, timetable and procedure in the various countries with which an international family may have connections can be very different indeed. Some countries may seem to favour men or local applicants and others seem to support women applicants and/or mothers. Some countries can be very slow from the start of the separation or the start of proceedings until the conclusion and outcome. Some countries are perceived as very generous to the weaker financial party, whereas some grant only short term alimony (spousal maintenance) or none at all. Some countries have exceptional powers to obtain full disclosure including finding out about assets offshore or held in the name of third parties and trusts, whereas other countries have very limited disclosure powers and permit easy evasions of full disclosure.
Proceedings in some countries can be very expensive in costs although this must be balanced against better outcomes. Whilst many countries now encourage people to act in person in family court proceedings without a lawyer, these international aspects are an area in which specialist legal advice should always be urgently taken before you embark on any action. The early stages of a case where two or more countries might have jurisdiction can be vital.
What about our children? Are they protected by this?
Financial provision upon separation for the children of unmarried couples is dealt with in Schedule 1 of the Children Act 1989.
It is a financial claim to provide for the children of a relationship for income and capital based on the needs of the children, not the cohabitee.
What is Parental Responsibility?
Parental Responsibility are the rights and duties given to a parent, and others with a close connection with the child, to take major decisions concerning a child’s life. Responsible parenting is to endeavour to reach these decisions with the other parent. If this is not possible, the court will decide.
A mother always automatically has parental responsibility. There are a number of ways for a father and others to acquire Parental Responsibility for a child. These are:
- A mother and father both have parental responsibility if they are married to each other at the time of the child’s birth or subsequently
- By both parents entering into a Parental Responsibility Agreement
- This is a straight forward document (one for each child) that is completed by both parents and lodged at the Family Court
- By an order of the Court
- For children born after 1 December 2003 of unmarried parents, the father has parental responsibility if he was present when the Birth was registered and his name is on the Child’s Birth Certificate as the child’s father
Further provisions can also apply for those in same-sex relationships, or with families who have been involved in surrogacy.
Is it true that I will commit a criminal offence if I take my child out of the country or keep the child in another country without the consent of the other parent?
Not necessarily. In this country, it is only a criminal offence to take a child out of the country without the request permission. There is currently an inconsistency between the criminal and civil offence of child abduction in this country when the perpetrator is the child’s parent. Whereas the 1980 Hague Convention relates to both wrongful removal and wrongful retention of children, a criminal offence under s 1 of the Child Abduction Act 1984 is not committed when a parent lawfully removes a child from the UK but then retains the child beyond the agreed deadline. Accordingly only wrongful removals are a criminal offence in this country. If you commit a wrongful removal the matter can be referred to the police and parents are frequently prosecuted for this offence. Being found guilty carries a risk of a prison sentence!
There is also a risk that your child may be taken from you and handed to the other parent or to another suitable relative until the possible return of the child and/or future care has been resolved. If there is no suitable adult to look after the child, as a last resort the local authority may be asked to take the child into care although this is rare.
Upon your return to the child’s country of residence, the police may take passports and other travel documents from you to prevent the risk of further abductions. These will not normally be returned until the arrangements for the future care of your child have been resolved.
It is irrelevant if you are the parent with whom the child mainly lives, perhaps solely lives and/or you are returning to your home country and/or the other parent’s physical or financial behaviour towards you is making your life intolerable. Return of the child will still be ordered although safeguards for you and your child will normally be put in place for you on your return.
I am anxious about what will happen if I am ordered back to the country from which I abducted our child originally.
You yourself will not be ordered to return: only your child. Of course you will expect and want to go as well. The Court should be asked to ensure that protective measures are put in place, known as 'safe harbour orders', so that you and your child return to a safe place and free from criminal or civil prosecution. The Court may provide that you are paid maintenance and that you have somewhere to live until the long term issues are determined by the Court. Without these safeguards in place, a court may not order a return.
Is it easier to oppose and defend a return to a non-Hague country?
Generally yes. The English court does not have an obligation to return the child, and will therefore consider the welfare of the child more broadly. English courts will be more prepared to consider long-term issues, i.e., who is the best parent to look after the child and care for the child and in which country. It is often beneficial for your lawyer to work with a specialist lawyer in the other country to ascertain what would happen if the child were to be returned.
What do I have to show to succeed in a relocation application?
To succeed in an application to relocate to another country with your child, you must prove to the Court that you have carefully considered the move and that the relocation is in the best interests of your child. You must show that you have considered schooling arrangements for the child and that you have found a suitable home where you could live. You must provide a detailed and thorough plan to relocate, including how often your child will see the other parent, and where, how travel will be funded, what support network you will have, and how your child’s medical needs will be met.
The English court will expect the parent seeking to relocate to make substantial and generous proposals for contact for the left behind parent, sometimes including the costs of travel and including the making of an order for contact in the other country. This requires cooperation of lawyers in each country but is a necessary and expected cost of the relocation.
Permission to relocate has historically been often given by the English courts but a change in case law in mid-2011 has made it harder, with a greater emphasis now on the best interests of the child. Previous law had tended to give priority to the wishes of the parent with whom the child was primarily living.
A successful application will depend on very good preparation and careful planning of both the proposed move abroad and the proposed application for permission. It is a quite technical area of the law with judicial guidelines. Consult a specialist lawyer in the very early stages of the planning.
When do these relocation applications tend to arise?
Applications to relocate permanently abroad with a child often arise within international families on parental separation when one parent has come from another country and wishes to return to their home country. It may be that they want to be near family, to recommence employment, or just to be at home, and wishes to take the child. Secondly, it arises sometime after parental separation when the primary resident parent has a good opportunity to seek employment abroad including to improve living standards for the parent and child. There may be requirements made by international employers for their employees to move countries, and the parent wants to take the child with them. Even more problematic are the so-called lifestyle relocations, when post separation one parent has met someone, perhaps has already become engaged or married, and wants to move to the other person’s country - or the parent simply wants to move abroad for a better lifestyle, invariably a warmer climate!
In all of these situations, the inevitable consequence of the relocation is that the left behind parent has dramatically reduced opportunities for contact and ongoing involvement in the child’s life, education and upbringing and often a much-reduced relationship with the child. This can vary from state to state, bearing in mind travel arrangements, flight times and even time zone differences. The child can risk losing the present involvement with grandparents or other family members, schools and friends, sports or musical cultures, language and other elements which may be important for the child.
What is the procedure?
If permission to relocate is not given by the other parent, an application is made to the court for permission (also known as 'leave') to remove the child permanently from the jurisdiction of England and Wales. It is known as 'leave to remove' or 'child relocation'. With many international families within England, these applications are quite frequent.
I have heard that England is very liberal and generous in allowing relocation applications, in contrast to other countries. What is the position?
Until mid-2011, English relocation law had hardly changed over several decades, despite massive changes in parenting and international families. Generally, provided the primary residential parent had good plans, well researched, affordable, allowing good, although inevitably lesser, contact with the other parent and it was not prompted by maliciousness to the other parent, leave would normally be given to relocate. Of course the court would endeavour to make sure that good alternative contact arrangements are put in place for the other parent, but this would not stop relocation.
But now the court will look at what is the best interests of the child. It will naturally look at what has been the caring arrangements for the child but if there has been any real element of jointly looking after the child, the court will now be more reluctant to allow a relocation.
Many other countries across the world are restrictive in granting leave. Some are, frankly, highly restrictive and hardly ever give permission, especially to a non-national parent seeking to leave. Other countries permit relocation but place much greater weight than England on the impact on the left behind parent, the child’s grandparents and other wider family and the effect on family life. Some countries give greater weight to the voice of the child. Different approaches abroad can be of relevance if on a return after a child abduction the primary residential parent then seeks to relocate and finds it being refused.
There are no international laws on child relocation, in contrast to child abduction.
I am not married to the child’s father. Do I need his consent before I take the child on holiday?
This can vary from case and can depend on who is on the birth certificate and where the child was born. If the child’s father does not have Parental Responsibility, you do not normally need the father’s consent before you take the child on holiday. However, if the child’s father has regular contact with the child, we recommend you to inform him of your arrangements. This may prevent an unnecessary application by him to try and prevent your holiday. It can also overcome any unjustified but potentially problematical allegations of abduction.
I have a contact order made in another country. Is it automatically recognised in England?
This can depend on what country your order is from, and if they are a signatory to certain international conventions. Across states who are party to the 1996 Hague Convention, contact orders and orders for return of a child are automatically recognised and enforceable, without the need for local or any more court orders. There are requirements for translations and certificates by the judge who made the order. It is a good idea to consult a solicitor when you arrive in the country where you will be living if you are intending to move.
In any event, the consequence of the move abroad is that the contact arrangements may need to be varied. However this is from the starting point of the existing order.
