International relocation of children in the UK (England & Wales): overview

A Q&A guide to international relocation of children in the UK (England & Wales).

This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.

This Q&A is part of the global guide to international child relocation law. For a full list of jurisdictional Q&As visit www.practicallaw.com/relocation-guide. To compare answers across multiple jurisdictions, visit the International Relocation country Q&A tool.

For an introduction to the guide, see the foreword to the International Relocation of Children Global Guide by Mr Justice Stephen Cobb.

Contents

Rights and responsibilities of parents

Legal responsibility for upbringing

1. What is the legal position of married and unmarried parents in relation to a child's upbringing, and is there a difference? Who has legal responsibility for a child's upbringing?

"Parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his or her property (section 3(1), Children Act 1989). The legal position of married parents is that they have parental responsibility for a child born to them during the marriage.

The legal position of unmarried parents is that the mother has parental responsibility for a child born to her. In the case of any registrations made on or after 1 December 2003, if the father becomes registered as the child's father on the child's birth certificate, he acquires parental responsibility for the child (section 4(1)( a), Children Act). If he is not registered, he does not have parental responsibility but can acquire it by entering into a parental responsibility agreement with the mother (section 4(1)(b) , Children Act) or obtaining a parental responsibility order (section 4(1)(c), Children Act).

If the parents are unmarried at the time of the child's birth but subsequently marry, the father will acquire parental responsibility by the marriage.

 

Rights and responsibilities post-separation

2. Do parents continue to share rights and responsibilities for the child following separation?

Parents with parental responsibility do continue to share rights and responsibilities for the child following separation. Parental responsibility cannot be removed from a mother or a married father who is the child's natural parent (unless an adoption or parental order is made). It can be ended by a court order in the case of an unmarried father, second female parent, step-parent or a civil partner of a parent with parental responsibility, if either (sections 4(2A), 4ZA(5), 4(A)(3) and 12(4), Children Act):

  • The father or second female parent acquired parental responsibility by registration on the child's birth certificate, a parental responsibility agreement or a court order (although it cannot end a parental responsibility order while a child arrangements order remains in force).

  • The step-father acquired parental responsibility by a parental responsibility agreement or a court order.

The exercise of parental responsibility can be restricted but can only be prohibited in exceptional circumstances.

 
3. How do parents generally share the care of children following separation?

Overview

Parents generally share the care of children following separation by agreement, with the children living with one parent part of the time and with the other parent for the remaining time. Parents share the care of their children in different ways.

There are no standard arrangements and there is no rule prescribing that children under a certain age or of a particular gender should live with one or other of their parents. Care arrangements vary, from children living with their father on alternate weekends and for extended periods during holidays, to them living with each parent for half of the time.

In the author's experience, it is not uncommon for children following separation to live with their father on alternate weekends, for one night or two nights during the week and for half of the school holidays, and to live with their mother for the remaining time.

Custody and access

Prior to the introduction of the Children and Families Act 2014, in the event of dispute about the arrangements for care of the children following separation, a residence order could be made in favour of one parent and a contact order could be made in favour of the other parent. Alternatively, a shared residence order could be made. Such an order suggested that each parent's home should be deemed to have equal importance for the child.

The Children and Families Act 2014 replaced the concepts of a residence order and a contact order (section 8, Children Act) with the concept of a child arrangements order. It also introduced section 1(2A) and 1(2B) of the Children Act, adding a presumption of parental involvement that "a court, in the circumstances mentioned in subsection (4)(a), is as respects each parent within subsection 6(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare". In subsection (2A) "involvement" means involvement of some kind, either direct or indirect, but not any particular division of a child's time.

Court orders

A parent can apply for a child arrangements order to define the time which a child is to spend with each parent. On any application for a child arrangements order, the child's welfare is the court's paramount consideration (section 1(1) , Children Act) and the court will have regard in particular to the "welfare checklist" set out in section 1(3) of the Children Act (see Question 7).

 

Relocation/right to remove

Overview

4. Are relocation cases a familiar feature of family law within your jurisdiction?

Relocation cases are a familiar feature of family law in England and Wales. Many family lawyers will only come across relocation law occasionally whereas some, particularly those who are known for their expertise in this area, may work on a number of relocation cases each year.

 
5. When do relocation disputes tend to arise and what are the most common reasons for parents seeking to relocate?

Relocation cases tend to arise following separation or divorce. The most common reasons for parents seeking to relocate are:

  • A wish to go home because of feelings of isolation and/or unhappiness.

  • An offer of new employment or other specific opportunity.

  • A wish to move to a new country with a new partner.

  • A desire for an improved lifestyle.

A wish to go home tends to arise relatively soon after a separation and/or divorce, whereas the other reasons above may arise at any time after a separation and/or divorce.

General principles and guidance

6. What is the legal position of a parent who seeks to relocate a child internationally?

A parent who seeks to relocate a child internationally must not remove the child from the UK without the written consent of every person with parental responsibility or leave of the court, if there is in force a child arrangements order (to which section 13(4) of the Children Act applies) (section 13(1)(b), Children Act).

A child arrangements order to which section 13(4) applies regulates the arrangements concerning with whom the child is to live and/or when the child is to live with any person. A person named in a child arrangements order as a person with whom the child is to live can remove the child for less than a month (section 13(2), Children Act).

If there is no child arrangements order in force, it is recommended that the written agreement of every person with parental responsibility should still be obtained. Further, save for in exceptional circumstances, the written agreement of the other parent should be obtained, regardless of whether that parent has parental responsibility. In both cases, this is because interference with a parent's "rights of custody" is child abduction (see Question 19).

Section 13(1)(b) of the Children Act does not prevent the removal of a child to another legal jurisdiction within the UK, such as Scotland or Northern Ireland. Parents and practitioners need to be very careful in situations of a potential move across the border into Scotland, for example, because the process for seeking a return of a child from Scotland is not straightforward.

 
7. What are the legal principles applicable to relocation disputes?

The overriding principle of law to be applied is set out in section 1(1) of the Children Act, that is, the welfare of the child is the paramount consideration (Payne v Payne [2001] EWCA Civ 166 and K v K (Relocation: shared care arrangement) [2011] EWCA Civ 793). The focus must be on the child's best interests. Every case must be determined having regard to the welfare checklist set out in section 1(3) of the Children Act (F (a child) [2012] EWCA Civ 1364). In particular:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding).

  • His or her physical, emotional and educational needs.

  • The likely effect on him or her of any change in his or her circumstances.

  • His or her age, sex, background and any characteristics of his or her's which the court considers relevant.

  • Any harm which he or she has suffered or is at risk of suffering.

  • How capable each of his or her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs.

  • The range of powers available to the court under the Children Act in the proceedings in question.

 
8. Do the principles applicable to relocation disputes differ in cases where the parent is seeking to relocate temporarily rather than permanently?

Where a child arrangements order is in force, a person named in the child arrangements order as a person with whom the child is to live can remove the child from England and Wales for less than a month (section 13(2) , Children Act).

Where no child arrangements order is in force or where a person with whom the child is to live wishes to remove the child for a temporary period of more than a month, that person must obtain the written consent of everyone with parental responsibility or obtain the permission of the court. As in the case of a permanent relocation and every other case where a decision is being made about a child, the welfare of the child is the court's paramount consideration (section1(1) , Children Act).

A temporary relocation can range from a holiday to a period of residence for a year or two for the purpose of work or study. The principles applicable to relocation disputes do not differ in cases where the parent is seeking to relocate temporarily rather than permanently. However, it has been suggested that "[t]he more temporary the removal, the less regard should be paid to the principles stated in Payne v Payne" (Re A (Temporary Removal from Jurisdiction) [2004] EWCA Civ 1587, [2005] 1 FLR 639) (see Question 9).

The English courts are cautious about granting temporary leave to remove to countries which are not signatories to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). For example, in S v S (2014) EWHC B20 (Fam), 11 February 2014, the father applied for permission to take his five year old child on holiday to Dubai. The mother sought a prohibited steps order to prevent the holiday. The first instance judge ordered an expert report to be prepared and transferred the case to the High Court. The father suggested a number of safeguards, including various undertakings and a declaration in the order that the child is habitually resident in England, but his application was dismissed. The offered undertakings were said to be worthless if the father did abduct the child and stay in Dubai himself. The declaration was considered to be of very limited value if any, due to the approach of the Dubai courts to foreign orders.

 
9. Have the courts in your jurisdiction provided any guidance to help the judges to apply the principles correctly?

The courts in England and Wales have provided guidance to help judges apply the principles correctly. In Payne v Payne [2001] EWCA Civ 166, Lord Justice Thorpe in the Court of Appeal assumed that relocation applications were only brought by maternal primary carers, and found that there was no legal presumption in favour of the reasonable proposals of a primary carer. He suggested that judges should adopt particular guidelines in determining relocation applications.

Those guidelines are as follows:

  • "Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life?...Is the mother's application realistic, by which I mean, founded on practical proposals both well researched and investigated?...

  • Is [the father's opposition] motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive...What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by the extension of the child's relationships with the maternal family and homeland?...

  • What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?..."

Over the years, the Payne guidelines have been criticised on the basis that they left the impact of a move on the child's relationship with their father too far down the list of points for consideration.

In the authorities of K v K (Relocation: shared care arrangement) [2011] EWCA Civ 793 and F (A child) [2012] EWCA Civ 1364, the Court of Appeal summarised that the only principle of law to be extracted from Payne is that the child's welfare is the paramount consideration. However, the valuable guidance could not be ignored.

In Re F (International Relocation Cases) [2015] Civ 882, Lord Justice Ryder giving the leading judgment analysed the role the Payne guidelines are to play in international relocation cases. He commented that "the Payne questions were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived…with the benefit of hindsight, the continued use of the Payne guidance by courts without putting it into the context of a welfare analysis perpetuated the problem". Lord Justice McFarlane emphasised that "the court must weigh up all the relevant factors, look at the case as a whole and determine the course that best meets the need to afford paramount consideration to the child's welfare". He referred to this as "a global holistic evaluation".

 
10. What is the perception of the public and/or legal profession of the way in which relocation disputes are determined by the courts?

Several years ago, the perception of the public and/or legal profession tended to be that it was too easy for maternal primary carers, in particular, to obtain permission from the court to relocate to another jurisdiction. Currently, it is difficult for family law practitioners to advise a client with confidence as to whether an application for permission to relocate will be successful.

In the author's experience, the addition of a presumption of parental involvement (by the introduction of section 1(2A) and 1(2B) of the Children Act) (see Question 3, Custody and access) seems to have placed increased focus on the impact of a move on the child's relationship with the opposing parent.

It can be difficult for a relocating parent to obtain permission to relocate in circumstances where the child stays with the opposing parent for a night or two during the week, as well as on alternate weekends and for extended periods during the holidays, or where the child is young and arrangements for the child to stay regularly with the opposing parent are not fully established.

 
11. Where are the most common places to which parents seek to relocate with children from your jurisdiction?

The places to which parents seek to relocate tend to vary and be wide ranging. One of the most common reasons for a parent wishing to relocate is a wish to return to his or her home country. Where this is the reason, the places to which parents seek to relocate include other European countries, Australia, New Zealand, the US, Canada and South Africa. Another reason for a parent wishing to relocate is a desire for an improved lifestyle. Where this is the reason, the places to which parents commonly seek to relocate are, in the author's experience, Australia and New Zealand.

Procedure for relocation

12. What is the legal procedure for seeking to relocate?

Procedure

The legal procedure for seeking to relocate, in the absence of consent being provided by every person with parental responsibility, is to make an application either for:

  • Leave to remove under section 13(1)(b) of the Children Act, if a child arrangements order is in place. In this case, while the court is not required to consider the welfare checklist under the Children Act (see Question 7) , F (A Child) [2012] makes it clear that the court will apply the checklist in every case).

  • A specific issue order or a child arrangements order with permission under section 8 of the Children Act, if no child arrangements order is in place.

Before making any such application, the relocating parent must attend a mediation information and assessment meeting (MIAM) with a mediator qualified to undertake MIAMs, unless that parent is entitled to an exemption from doing so. The purpose of attending a MIAM is to find out about mediation and see if a mediator can help to sort out future arrangements.

If the relocating parent has attended a MIAM, either alone or with the other parent, but does not wish to start or continue mediation or the mediator determines that mediation is unsuitable, that parent should apply for either:

  • Leave to remove under section 13(1)(b) on Form C2 (with Form C1A if required).

  • A specific issue order or a child arrangements order with permission under section 8 on Form C100 (with Form C1A if required).

Family Court forms are available at www.justice.gov.uk/courts/procedure-rules/family/formspage.

The application must be submitted to the local Family Court. The gatekeeper will allocate it within the Family Court (in accordance with the President's Guidance on Allocation and Gatekeeping for Proceedings under Part II of the Children Act 1989 (Private Law) issued on 22 April 2014 in accordance with Rule 21 of the Family Court (Composition and Distribution of Business) Rules 2014).

The papers should then be submitted to the Children and Family Court Advisory Support Service (CAFCASS) (www.cafcass.gov.uk) as soon as the application is issued.

The application will usually be listed for a first hearing dispute resolution appointment (FHDRA) five to six weeks from the date of the application. Both parties will be required to attend this hearing. Prior to the hearing, safeguarding checks will be carried out by CAFCASS.

At the hearing, a CAFCASS officer should be present to speak to the parents, and the district judge/deputy district judge should try to assist them to reach an agreement. At this stage, the district judge/deputy district judge is only able to make an interim order if such an order is necessary in the interests of the child. In the author's experience, it is rare for a full agreement to be reached at the FHDRA in a relocation dispute.

The district judge/deputy district judge may consider at this stage whether the application should be transferred to the High Court. If the proposed destination country is a non-Hague Child Abduction Convention country, the application will usually be transferred to the High Court.

The district judge/deputy district judge will make directions for the filing and serving of:

  • A section 7 report from CAFCASS (or perhaps an independent social worker, if the parties wish and are able to meet these costs and/or a welfare enquiry needs to be completed within a shorter timeframe).

  • Statements from the parents and any witnesses.

The district judge/deputy district judge will also list a second hearing (a dispute resolution appointment) and usually the final hearing. The dispute resolution appointment will not usually be able to be listed until at least 16 weeks after the date of the FHDRA, as CAFCASS generally require up to 16 weeks to conduct their welfare enquiry and complete their report.

The dispute resolution appointment gives the parents the opportunity or requires them to consider (technically with encouragement from the judge) whether an agreement can be reached after the CAFCASS report is received. If no agreement can be reached at or after the dispute resolution appointment, the application is determined at the final hearing (which normally lasts for at least three days) after oral evidence is given by the CAFCASS officer tasked with preparing the report, the parents and any witnesses.

Duration of procedure

A lawyer acting for any relocating parent should consider carefully whether it will be important that the relocation application is determined by a particular point, for example, before the end of the child's school year, and assess in which court the application should be issued (if there is more than one possibility) with this in mind.

The time it takes for a relocation dispute to be resolved may differ between courts. For example, the author has had recent experience of such a dispute taking one year to be resolved from issuing the application in the Central London Family Court and only several months in the Cambridge Family Court. Commonly, relocation disputes can take around nine months to resolve in England and Wales.

 
13. What steps can be taken to prevent a parent removing the child from the jurisdiction without the agreement of the other parent or the court's permission?

The steps which can be taken to prevent a parent removing the child from England and Wales are to request an undertaking from the relocating parent not to remove the child from England and Wales pending agreement or order of the court.

If the request for an undertaking risks the relocating parent attempting to leave England and Wales or the relocating parent refuses to provide an undertaking, the opposing parent should apply for a prohibited steps order under section 8 of the Children Act. In case of imminent risk, a port alert can be requested.

Alternative dispute resolution (ADR)

14. Are methods of ADR used to help to resolve relocation disputes in your jurisdiction? How effective are these ADR methods in such cases?

Methods of ADR are often considered as means of helping to resolve relocation disputes in England and Wales. These include mediation (including a requirement to attend a MIAM) (see Question 12) and collaborative law. Parents may be assisted by these processes to agree a more "creative" solution than would likely be imposed on them by the court process, and to avoid the costs of the full court process (which can run into tens of thousands of pounds).

In practice, relocation disputes can be difficult to compromise. The opposing parent will often find it difficult to consent to his/her child moving to a country thousands of miles away, and will not be able to meet the relocating parent "halfway".

In the author's experience, ADR may be used most effectively in cases of international families where financial resources allow regular overseas travel/visits, and/or in cases where the opposing parents have flexible work/personal arrangements allowing them to move with the relocating parent and child or spend significant time in the other country.

Factors in relocation cases

15. What significance do the child's wishes and feelings have in a relocation case and how are these ascertained/presented?

One factor listed in the welfare checklist set out in section 1(3) of the Children Act (see Question 7) is the child's ascertainable wishes and feelings considered in the light of his or her age and understanding. The court is required to have regard to the welfare checklist when considering any application under section 8 of the Children Act for a specific issue order or a child arrangements order with permission to remove the child from the jurisdiction (see Question 8) and, as confirmed by F (A Child), any application under section 13(1)(b) of the Children Act.

The child's wishes and feelings are usually ascertained by a CAFCASS officer and presented to the court in the CAFCASS officer's report. In some cases, an independent social worker is appointed to ascertain the child's wishes and feelings or undertake a welfare analysis instead of a CAFCASS officer. The older the children and the greater the level of their maturity and intelligence, the more weight will be given by the court to their wishes and feelings.

Although it remains unusual for the child to be a party to the litigation and separately represented, given that it is expected that the child's wishes and feelings will be communicated to the court through the parents and the CAFCASS officer (or independent social worker), it does occasionally happen. Under Rule 16.2 of the Family Procedure Rules (FPR) 2010 (www.justice.gov.uk/courts/procedure-rules/family/rules_pd_menu), the court can make a child a party to proceedings if it considers it in the best interests of the child to do so.

The matters which the court will take into consideration before making a child a party are set out in Practice Direction 16A of the FPR. Rule 16.4 of the FPR provides that the court must appoint a children's guardian for a child who is the subject of proceedings if the court has made the child a party under Rule 16.2. An example of a relocation case in which the children were made parties to the proceedings is in Re R (children: temporary leave to remove from jurisdiction) 3 March 2014. The children were made parties to the proceedings and a CAFCASS officer was appointed as the children's guardian.

 
16. Are there any differences between geographical regions/areas in your jurisdiction in the way in which relocation disputes are determined by the courts?

In the author's experience, the main difference in the way in which relocation disputes are determined by the courts between geographical regions/areas is that the length of time from the issuing of the application to the final hearing is likely to be less in geographic regions/areas outside London.

Offers of security

17. Do offers of security for the return of the child to spend time with the other parent feature in relocation disputes in your jurisdiction? What form do these take?

Offers of security for the return of the child do feature in relocation disputes in England and Wales, particularly in cases where the proposed destination country is a non-Hague Child Abduction Convention country. The concept of a mirror order is not recognised in many non-Hague Child Abduction Convention countries. Offers of security can comprise one or more of the following:

  • A monetary bond, requiring the relocating parent (or a member of the parent's family who will continue to be based in England and Wales) to place a sum of money in a bank account where it will be retained for a specified period. This sum can be released to the opposing parent, if necessary, to meet the costs of litigation in the event of difficulties regarding arrangements for the child to spend time with that parent (provide a litigation fund).

  • An agreement entered into by a member of the relocating parent's family and notarised, detailing the arrangements which will be put in place for the child to spend time with the opposing parent.

  • An undertaking provided by the relocating parent, to comply with the arrangements for the child to spend time with the opposing parent and/or return the child to England and Wales if so ordered by the court.

  • A solemn declaration witnessed by the relocating parent and by family members to ensure compliance with the arrangements for the child to spend time with the opposing parent.

An example of a case in which such safeguards were offered is EN (Mother) v AH (Father) [2015] EWFC 39-7 May 2015. The parents were Iranian nationals living in England. The mother made an application for temporary permission to remove the parties' young daughter to Turkey for a holiday. The father argued that the mother would flee across Turkey's border with Iran and relocate there permanently with the child. Cobb J granted the mother's application. She had offered safeguards guaranteeing the child's return, including the following:

  • The order contained a recital that the child was habitually resident in England, which had sole jurisdiction for making welfare decisions for her.

  • The order reflected that the child was not on the mother's Iranian passport.

  • The mother gave sworn undertakings to provide the father with details of the holiday, return the child to the jurisdiction, not seek a passport for the child in Turkey and apply as soon as possible for a British passport for herself.

  • The mother would lodge her divorce certificate and her and the child's birth certificates with her solicitors during the period of travel.

Rights of appeal

18. If a parent is dissatisfied with the decision made by a court in a relocation case, does the parent have a right to appeal?

A relocation decision can only be appealed with the permission of the trial judge or of the appeal court. The court which made the original order must be asked whether it gives permission before the appeal court is approached directly. Permission to appeal will only be given where the court considers the appeal would have a real prospect of success, or the court considers some other compelling reason exists for the appeal to be heard.

In practice, the trial judge will in nearly all cases refuse permission unless a new point of law has arisen or the case has unusual aspects. Assuming that the trial judge refuses to grant permission to appeal, an application for permission must be made to the relevant appeal court. If the application is considered on paper only and refused, the application can be renewed at an oral hearing. If permission is then refused, no further appeal can be made.

If permission is granted, any appeal will not be allowed unless the decision of the court below is found to be wrong, or unjust because of a serious procedural or other irregularity in the proceedings (Rule 52.11(3), Civil Procedure Rules (CPR) 1998).

An appeal against:

  • A decision of a district judge of a Family Court (other than the Central Family Court) must be made to a circuit judge.

  • A decision of the Central Family Court must be made to a High Court judge.

  • A decision of a circuit judge (or recorder) or a High Court judge (or deputy) must be made to the Court of Appeal.

If an appeal is against an order permitting the relocation of a child by a particular date, the appellant must apply for a stay of the order to the trial judge or, if he refuses, to the Court of Appeal. Generally, a stay will be granted if it would preserve the status quo pending an appeal.

Assuming permission to appeal is refused by the trial judge (and even if it is not) a notice of appeal (Form N161) must be filed within 21 days from the date of the decision. The grounds of appeal must be set out in the form or on a separate sheet.

An application for permission to appeal must be accompanied by a skeleton argument. This must be filed at the same time or appended within 14 days of the filing of the notice.

A bundle will need to be prepared for the appeal court. This bundle must contain certain limited documents (as set out in CPR 1998 Practice Direction 52C for appeals to the Court of Appeal). Such documents usually include the judgment, notice(s) and skeleton arguments, the statements and any expert and CAFCASS reports.

On an appeal, the court will only be permitted to review the decision of the lower court unless the appeal court considers that it would be in the interests of justice to hold a rehearing. Occasionally, the court may overturn the lower court's decision and substitute a new decision. However, more usually, it will remit the case to the judge who originally heard it or to a different judge for a retrial.

 

Abduction

Overview/domestic and international law

19. What is the position if a parent removes a child from your jurisdiction to another without the consent of the other parent and/or permission from the court?

If a parent removes a child under the age of 16 years from England and Wales to another jurisdiction without the consent of the other parent and/or permission from the court, he or she commits the offence of child abduction. The consequences of this can include orders that the child be summarily returned or criminal charges (section 1, Child Abduction Act 1984).

 
20. Is your jurisdiction a signatory to any relevant treaty or convention concerning child abduction?

The UK is a signatory to the:

  • Hague Child Abduction Convention.

  • Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (this convention's complementing provisions have strengthened the operation of the Hague Child Abduction Convention).

The UK is also a signatory to Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (Brussels II Regulation).

Factors

21. Are there any defences which could be raised by a parent to attempt to avoid the child's return?

Application for child return

A parent can make an application under the Hague Child Abduction Convention seeking a return of the abducted child to the child's place of habitual residence (which must be a signatory to the Hague Child Abduction Convention) with a view to the courts of that country making the welfare decisions.

If the abduction is from an EU country (save for Denmark) the Brussels II Regulation also applies and prevails over the Hague Child Abduction Convention.

If the child has been in England and Wales for less than a year and the applicant establishes the essential factors, a return is mandatory unless the respondent parent can establish one or more limited defences under the Hague Child Abduction Convention (see below, Defences). The essential factors are that there must have been a wrongful removal or retention of the child from the child's country of habitual residence in breach of the applicant parent's rights of custody (Article 3, Hague Child Abduction Convention).

Defences

Article 12: child settled in new jurisdiction. The respondent parent can claim that the child is now settled in the new jurisdiction where 12 months have passed since the removal or retention. The degree of settlement must be more than a mere adjustment to the child's new surroundings.

Article 13: consent. In accordance with Re J (Child Abduction: Consent: Grace Risk of Harm) [2015] EWHC 1160 (Fam) [2015] All ER(D) 89 (May), the approach of the courts is that:

  • Consent to the removal of the child must be clear and unequivocal.

  • Consent can be given to a removal of the child at some future event but unspecified time, or on the happening of some future event, but such advance consent must still be operative and in force at the time of the actual removal.

  • The happening of the future event must be reasonably capable of being ascertained. The condition must not have been expressed in terms that were too vague or uncertain for both parties to know whether the condition would be fulfilled and fulfilment of the condition must not depend on the subjective determination of one party.

Article 13(a): acquiescence. In Re H (Minors) (Abduction Acquiescence) [1997] 2 FCR 257, the House of Lords set out the following guidelines on acquiescence:

  • A left behind parent "acquiesces" in the removal or retention of a child if they in fact consented to the child's continued presence in the jurisdiction to which the child had been abducted.

  • Whether they had so acquiesced depends on their actual state of mind and subjective intention, a question of fact to be determined by the trial judge.

  • Even if the left behind parent had not in fact acquiesced, they may be held to have done so if their words or actions clearly and unequivocally showed (and had led the other parent to believe) that they were not asserting or going to assert their right to the summary return of the child, that is, their words or actions were inconsistent with such return.

Article 13(a): left behind parent not exercising their rights of custody. Rights of custody are defined in Article 3 as those that "may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that state".

Article 13(b): grave risk of physical or psychological harm. The respondent parent must show that there would be a grave risk of physical or psychological harm to the child as a result of the return or of being placed in an intolerable situation. See Re E (children) (wrongful removal: exceptions to return) [2011] UKSC 27, [2011] 2 FCR 419 and Re S (a child) (abduction: intolerable situation) [2012] UK SC 10, [2012] 1 FCR 493.

Article 13: child objects to a return. The return of the child can be refused if the child is found to object to being returned and has attained an age and a degree of maturity at which it is appropriate to take account of his or her views.

The courts in England and Wales will generally aim to return a child once the wrongful removal/retention has been proven. If the respondent is able to establish one of the defences, the court can still exercise its discretion to order a return.

 
22. How are the child's wishes/feelings ascertained or presented in an abduction case?

The decision to return the child to the country of his or her habitual residence is not welfare based. However, if the respondent is relying on the defence that the child objects to a return (Article 13, Hague Child Abduction Convention) or that there would be a grave risk of physical or psychological harm to the child as a result of the return or being placed in an intolerable situation (Article 13(b), Hague Child Abduction Convention), the court may direct a report to be prepared by an experienced officer from the CAFCASS High Court team (see Question 15). This report will address the child's views about a return and whether the child objects to a return (see for example MR v HS (Hague Convention: Child's Objections) [2015] EWHC 234 (Fam)).

It can alternatively be ordered that the child be joined as a party to the proceedings and be represented by a children's guardian (see for example M (Republic of Ireland) (Child's Objections) (Joinder of children as parties to appeal) [2015] EWCA Civ 26, and LC (Children) (International Abduction: Child's Objections to Return), Re [2014] UK SC 1).

 

Reform

23. Are any legal developments in progress or planned in the law which may affect the law or practice in relocation or abduction cases?

The author is not aware of any further legal developments in progress or planned which may affect the law or practice in international relocation cases, save that the Payne guidelines (see Question 9) may play a less significant role in future, following the Court of Appeal's Judgment in Re F (International Relocation Cases) [2015] Civ 882 and the Court of Appeal's judgment in Re C (internal relocation) [December 2015]. The latter case is particularly significant, as it presented the Court of Appeal with the opportunity to consider fully the proper principles to be applied by the courts in internal relocation cases (within the UK). The Court of Appeal determined that the welfare principle in section 1(1) of the Children Act dictates the result in internal relocation cases just as it is now acknowledged that it does in international relocation cases. Accordingly there is no reason to differentiate between internal relocation cases and international relocation cases.

 

Online resources

legislation.gov.uk

W www.legislation.gov.uk

Description. Contains original versions of all legislation since 1988, as well as revised versions of legislation that have been in force since 1991.

Hague Conference, child abduction section

W www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction

Description. Contains the full text of the Hague Child Abduction Convention.

Bailii

W www.bailii.org

Description. Database of English case law and legislation.



Contributor profiles

Anna Worwood, Partner

Penningtons Manches LLP

T +44 20 7404 4433
F +44 20 7430 1133
E anna.worwood@penningtons.co.uk
W www.penningtons.co.uk

Professional qualifications. England and Wales, Solicitor, 1998

Areas of practice. Family law.

Non-professional qualifications. LLB in Law, Warwick University

Languages. English, intermediate French and German

Professional associations/memberships

  • Member of Resolution and Resolution's International Committee.
  • President of the Private Client Commission of the Association Internationale des Jeune Avocats (AIJA).
  • Fellow of the International Academy of Matrimonial Lawyers (IAML).
  • A collaborative lawyer.

Publications. Co-author of Relocation: A Practical Guide, published by Family Law, Jordan Publishing Ltd 2013 (the second edition is to be published shortly).


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