Navigating multiple jurisdictions
Affordable air travel and mass migration for economic and social reasons have created truly international families.
Today, children are travelling around the globe with increased frequency and staying in different countries. As a result they are often the subject of litigation in multiple jurisdictions at various stages of their lives.
We can advise parents on the recognition and enforcement of orders that have been made by courts in other jurisdictions when either the child or the non-resident parent moves to this jurisdiction.
In addition we are able to provide specialist legal advice and practical assistance to either parent (resident or non-resident) when they are considering contact abroad.
If I move to a non EU country or non 1996 Hague Convention country, will the contact order be automatically enforceable in that country?
There is no guarantee as each state is responsible for its own procedure of recognition of foreign orders. You must seek advice from a lawyer in that country who will then take whatever action is needed to obtain an order in similar terms to the order you obtained in this country or whatever is then best for the child in maintaining contact.
If you are currently engaged in Court proceedings to obtain a Contact Order, we recommend you make provision in the Court Order for either you or the other parent to obtain a 'mirror order', an order in similar or identical terms, in the other country. Also register the order or ensure that the Court Order makes it clear who will pay for the Order to be registered or for a mirror order to be obtained in the other country. It would also be preferable for a time limit to be placed on the issuing of the relevant application in the other country and an order for the other party to cooperate with the process in order to enable it to run through smoothly.
Before asking a Court to make such an order, take advice from a lawyer in the country where you propose to live so that the correct wording can be placed in the English Court Order.
Just because one of us is living in Englandor we were married in England, does this mean that the divorce should be here?
No. Many international families find at a time of relationship breakdown that two or more countries can deal with issues regarding their family. The financial outcomes accompanying the divorce can be dramatically different. It is very important to find out which is the best country for you. An outcome in one country may be highly favourable to an applicant, usually the weaker financial party, but highly detrimental to the paying party, the stronger financial party. There is much unfairness and injustice to international families by the wide disparity of final financial orders made in different countries. Specialist legal advice should be taken at a very early stage in the breakdown of the relationship about where any divorce or other family proceedings should take place, and it is sensible to seek this advice before discussing divorce with your spouse for civil partner.
Disputes about which country should deal with a divorce and related family issues are known as 'forum disputes'. Taking advice about the best, most advantageous country for a divorce or other family proceedings is known as 'forum shopping'. These forum disputes can take very many months from commencement of the application to the end of the final hearing and are often very expensive, public and very divisive for future parenting arrangements and resolving other issues.
Take care before embarking on a forum dispute. But the differences in outcomes between countries can be substantial even for families of modest wealth.
What is the difference within Europe? How is it decided which country will deal with a divorce?
Prior to 31 December 2020, if two European Union countries had jurisdiction e.g., UK and France, it depended only on where the proceedings were lodged first in time. That country’s courts would then usually deal with all matters concerning the family including divorce, and ancillary financial matters.
Since 31 December 2020 (when the UK left the EU) the standard discretionary 'closeness of connection' will apply to EU and non-EU countries outside the UK. (For forum disputes within the UK jurisdiction is often determined on where the parties last lived together).
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.
