How easy is it to bring your child back to the UK?
Earlier this week, Marilyn Stowe shared the story of a mother who had moved to a faraway country with her husband, an overseas national, and her young family, only to find herself “stuck” there after the marriage broke down. (The Expat’s Tale: “I’m a stuck mum”.) She is nearly at breaking point, having struggled unsuccessfully against that country’s legal system. In this follow-up post I intend to highlight some of the difficulties faced by expats who try to return to the UK with their children.
Browse expat forums, and you will discover that there are many “stuck parents”. It is sad to read that so many people now feel that they are “trapped” in a country where they do not wish to live. The alternative – moving back to the UK and leaving a child or children behind – is unthinkable for most parents. As a result, a parent can be left to grapple with life in a strange country, with no family to support them other than their former partner. The parent is left feeling lonely and isolated, which can in turn have a detrimental effect on the child.
When the court denies an application to leave, this is usually because the court believes that it would not be in the child’s best interest to relocate. The child’s welfare is of paramount consideration. However it seems nonsensical to think that it is in the child’s best interest to force a parent to leave the child behind or stay in a country to which the parent has no real attachment.
A note on emigration
When a couple decides to emigrate from the UK, little thought is given to what will happen if the relationship breaks down while they are living in another country. Many parents think that if their children were born in the UK that they will simply be able to return with them from Australia, New Zealand, USA and so on, but this is simply not the case. Sadly, a lot of parents find this out the hard way.
Many parents have new wills drafted before they emigrate, to state what will happen to the children if the parents die while the family is living in another country. So why do so few parents ask a family lawyer to draft an agreement about what should happen to the children if they split up? It is advisable to have, at the very least, a discussion about will would happen to the children in the event that the parents split up and one parent wants to return to the UK.
Obtaining the court’s permission
If a relationship breaks down and one parent wishes to return to the UK, that parent needs to have the other parent’s consent to take the child with them. If they do not have consent, they need the foreign court’s permission.
Obtaining the court’s permission is often a long and expensive process, with much emotional turmoil. Some parents spend tens of thousands of pounds in legal fees, fighting to be allowed to take children back to the UK with them. Having an agreement in place could, at the very least, minimise some of this. The parent who wishes to stay could still try and fight it, but if there was an agreement in place the relocating parent could have a stronger case.
The Hague Convention on Child Abduction
Many parents are tempted to return to the UK and “see what happens”. I can understand why parents might want to do this, but it is not a good idea. If the country from which the child has been removed is signed up to the Hague Convention, the parent left behind can make an application for the child to be returned.
Many of the countries to which Britons emigrate to are signed up to the Hague Convention, and a full list can be found here.
In these circumstances, the parent who has taken the child back to the UK will be treated as having abducted their child, because they have removed the child from the country in which the child is habitually resident. If a return is ordered though, it does not necessarily mean that the court is saying it is in the child’s best interest to live in that country. It means that the foreign country’s court has jurisdiction, and that the parent must secure permission to relocate from that court.
Under the Hague Convention, there are certain instances when the court does not need to order that the child is returned. These are as follows:
- If more than one year has passed since the child was removed from the country of habitual residence, and the child is settled in his or her new environment.
- If the other parent consented to the relocation or the court granted permission beforehand or afterwards.
- If “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
- If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”.
Should a parent be faced with a Solomonic choice?
Certain countries are notoriously hard to relocate from. Take the recent case of B v K [2010] NZCA 96. The court decided that the mother could not relocate from New Zealand to Australia because, due to the length of the litigation, shared parenting had been put in place and appeared to be working. The “risks associated with parental conflict or the risk that the mother might become isolated to the extent that it affects her ability to be a good parent” were not sufficient to justify what had become a “good working solution for the children”.
My thoughts on this are that if the mother becomes so isolated and unhappy that it affects her ability to be a good parent, the court’s decision would not be in the children’s best interests.
In the UK, the rules regarding relocation take into account the effect that not allowing the move will have on the parent, and the subsequent effect that upon the child’s wellbeing. To me, this is much more logical than simply ignoring the parent’s state of mind. If a parent is isolated, unhappy and has no support system in terms of family, the parent’s distress is likely to have an adverse effect on the child. Surely it cannot be in the child’s best interest if, in these circumstances, the court forbids the child and parent from returning to the UK.
The reader who contacted this blog and shared her story told of the Solomonic choice that she was forced to make:
In this country, the parent who wishes to relocate is first asked by the judge and also the court psychologist whether he/she will stay with the child if denied relocation, even when the reasons for wanting to return are good. An answer of “no” is often taken to be proof of a lack of care for the child, resulting in the child being handed over to the non-relocating parent.
This seems wholly unfair. The parent is faced with the terrible choice of being stuck in a country where they are unhappy, or returning to the UK without their child. It could also be argued that if the parent answered “yes” to this question, the court could infer that it would not be so terrible if they denied the parent permission to relocate. This puts the parent in a terrible position, pitched against a system against which they may feel that they cannot win.
The American case of re Marriage of Burgess (1996) 13 Cal.4th 25, which concerns the relocation of children, states that neither parent “should be confronted with Solomonic choices over custody of minor children”, and this is entirely correct in my view.
Coming next: what rules are applied to cases in which one parent wishes to move, with the child, to another country?
Laura Guillon is the principal trainee solicitor at Stowe Family Law, assisting the Senior Partner. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.
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11 Comments
Chambers on April 14, 2011 at 11:32 am
Can we please stop treating mothers as children or lesser beings who need special allowances because of their fragile nature.
How about we put the children first and foremost?
If a child is being brought up with family and friends and is habitually resident in a country, then just because one parent decides s/he would prefer to move somewhere else (even back to their original country), it should not mean the massive upheaval of the children from their left behind parent and family, friends and school etc
It is the height of adult selfishness for a parent to remove a child from its familiar surroundings and family just because that adult has other preferences. It was the adults who made the decision where to live and to bring a child into the world, children should not have to suffer through adults poor decisions and inability to stick to their plans.
If you move to another country with your partner and you have children then you should be prepared to make sacrifices for your children and not the other way around.
Many times we see mothers in particular remove children from their familiar surroundings in the UK to abroad or from abroad back to the UK on no more than a whim often or to suit these mothers needs rather than the children’s. It’s about time mothers were expected to be as child focussed as fathers and put children’s needs before their own.
To remove children from their familiar surroundings where they have grown up and go to school and crucially from another parent and their family and friends is the most selfish act possible by a parent.
Let’s treat mothers as adults rather than special cases and put children first and foremost for a change.
Six-Armed Momma on April 15, 2011 at 2:01 am
Points:
The fathers’ rights groups have vocally exerting pressure for some time now. In fact, it is amazing how much time these men seem to have to push their agendas on the web and elsewhere, efforts which often include suggesting measures be put in place to make it more difficult for women to leave unhappy marriages in the first place.
It is most often because a good family life is perceived to be more easily obtainable elsewhere that the mothers move those children in the first place. Great Britain has experienced many outward migrations over history. Her offspring discovered and settled new worlds in expectation of a better life for future generations. However, the grass is not always greener, and arguing that mothers should therefore then stay put after moving, for no other reason than because they are “there now”, is utter rubbish.
The economic conditions, schooling, culture and quality of relationships in another place may well be better for children than the disputed location.. Children are not so fragile that they would not thrive after an adjustment period, as long as their life rhythms “at the hearth” remain essentially the same. I have seen this happen. Many times, after the dust settles, they find they are doing well, and if a mother is happy then often the children are happier as well:
http://www.livescience.com/13541-happiness-survey-moms-children.html
Mothers carry a larger share of the household organizational burden for the family. Doing more than their humanly logical allottment of the domestic chores, bringing in bacon, remembering and coordinating everyone’s schedules,.doing more of the “emotional work” and communication with teachers, etc.,it goes on. In sum, mothers bear more weight in ensuring that family affairs run smoothly. As a functional linchpin in the family microsystem, mothers’ emotional health is of some importance. To dismiss this is to be ignorant of the reality of family women’s daily lives.
http://www.blueprintgroup.ca/readingroom_articles_secondshift.htm
MIchael Robinson on April 15, 2011 at 8:05 am
To echo the comments above, what seems missing in this article are consideration of the children’s needs. An understandable ommission, given that the same happens in courts every day, as 90% of applications to relocate are granted (by one parent after separation).
There should be sympathy for any person who prefers to move back to a country of birth, but the question rarely asked (including by the judiciary), is what impact does the move have on the rest of the family.
Sandra Davis of Mischcon De Reya phrased it thus ‘‘The choice to have children necessarily involves sacrifices… One of those sacrifices must be to prioritise a child’s needs to maintain a fulfilling relationship with both of his parents over an often selfish desire to start afresh following parental separation.’
Sadly, our UK courts do not consider children’s needs in relocation cases, at least not according to the welfare checklist or mindful of contemporary expert evidence. Children are expected to cope with a move abroad, the mother’s needs and happiness are prioritised which goes counter to the paramountcy principle.
Research shows us that children are 40% more likely to suffer mental health problems when removed from one parent. Relocation abroad is at the severe end of the spectrum, when the severe diminishing of their bond with one parent is compounded by a loss of friends, wider family, and a drastic change in the status quo. Such separation also inhibits education and emotional and academic development. Not my opinion, but hard evidence from leading psychological and sociological academics and institutions.
Parliament decided 20 years ago that the status quo was an important consideration in child welfare. Sadly, the courts ignore not only this (in relocation cases), but the expert evidence which shows how likely a child is to suffer harm.
Sadly too, the courts pander to the ‘ME’ generation, forgetting that with rights, come responsibilities.
Michael Robinson
MIchael Robinson on April 15, 2011 at 11:18 pm
Six Armed Momma…
The facts are that the amount of time fathers spend on childcare is just 15 minutes less a day on average than that of mothers (source… Equal Opportunities Commission 2008 Research). The level of father involvement in childcare has increased 9 fold since 1970s.
It’s not about father’s rights though, but the increasing importance of the child/father bond as society has changed. It’s about a child’s right to family life, and recognising the emotional harm caused to children by a drastic breach in the status quo that relocation away from one parent, wider family, school, culture, and friends brings. A child’s rights are now enshrined in a United Nations Convention, but domestic law is not in keeping with international conventions designed to protect child welfare. The reasons for such rights (the child’s), is that research is conclusive that children suffer harm when their relationship with either parent is diminished.
The facts are that a child is 40% more likely to suffer mental health problems in later life when their relationship with their father (and no doubt mother) is diminished. 15 studies by leading psychological and sociological experts/institutions highlight risks of harm caused by relocation away from one parent.
A mother’s psychological health of course has importance, but should not outrank a child’s needs, and the child’s health, as we currently see happen in the courts. The interesting point is that not one research study has found, in 40 years, that the ‘distress argument’ is anything more than judicial theory. It has no basis in fact, whereas the research I point to involves sample groups of up to 40,000 children.
Michael Robinson
http://www.thecustodyminefield.com
Six-Armed Momma on April 16, 2011 at 10:16 pm
This also includes the responsibility to give the child the best possible life, which could be defined in terms of quality rather than quantity of care time.
In the case of Rosa v Rosa, in Australia, a child and her mother were ordered to stay in a bleak remote mining community because the father refused to accept a transfer away from his job so that the child and her mother could enjoy the support of the mother’s large extended family.in a familiar civilised setting with many more opportunities and comforts -all so that the father could have exactly 50/50 shared care.
If a child’s welfare is paramount, then shared parenting laws that emphasise a status quo for its own sake and equally-meted-out care time does not seem to serve the child’s interest, if that child would fare better elsewhere for many good reasons.
If, as in the aforementioned case, the mother is being forced to live in a caravan, unable to find a position requiring her skills, isolated from her family and support network, struggling daily with loneliness and bitter aftermath of a breakup in which surely the bleakness and remoteness of that very location played a part, then that surely cannot be providing that girl with a good childhood.
That decision gave too much weight to the husband’s desire to work a certain job in a certain place iover the wife’s reasonable request to move back to where she has support, a social service network, and housing and employment prospects.
Who is the narciscsist here? And whose interests are being catered to? Obviously the father’s. This type of legislation is not child-centred. It is simply indicative of a reactionary trend triggered in response to more women entering the workplace, and more displaced fathers having care of children.
The fact is that every relocation case has its own history and specifics, it is not always just some selfish mother wanting to decamp for “childish” reasons, and any legislation *having the real-life effect* of establishing a precedent in favour of shared care for every unfortunate couple being dredged through the courts will simply add to the growing number of sad cases in the news, such as this one cited above, and others. Among this latter for example I can cite immature or substance-abusing young men being given visitation because of a perceived “need for two parents”, even breastfeeding infants, said men becoming irritated by the child’s cries because they disturb some activity such as a video game and hit the child or handle him or her roughly.
Having one’s limb caught in a steel trap is also “status quo”. Surely if a parent were the one immobilised in this way, the “status quo” would be pleasant for neither the parent, nor the child who has to witness it.
MIchael Robinson on April 17, 2011 at 2:53 pm
No one is suggesting that all relocation applications should fail, simply that the current weighting towards the distress argument is too great in this jurisdiction.
I could easily point to a relocation case where shared care existed, the mother had never been to Australia, CAFCASS were unable to do a report because they were too busy (quote), the mother had never been to Australia or visited prospective schools (school selection was a bundle of internet printed reports), the child had a bedroom at the paternal grandparents who also took the child to school every day (but their views, and the child’s, were not heard at all), and leave to remove was rushed throughand granted in 6 weeks. The barrister in that case said outside the court said (and I quote) ‘I can’t appeal, if I do the judge will kick me round the court room because she refused a leave to remove two years ago which got overturned at appeal, and judges don’t like that’.
Or another case where the children both stated they did not wish to leave the UK (but the trial judge failed to mention this in judgment).
Or countless others…
I’m in an unusual situation where if a parent searches on google on ‘leave to remove’, two of the top ten websites are mine, and I’m contacted by many, many parents and grandparents who feel that the courts lean too far in one direction, and child welfare is rarely considered.
The answer isn’t to lean too far in the other direction, but adhere to a more child focused set of guidance (I favour and support the guidance in the Washington Declaration).
85% of solicitors polled by the Resolution felt that the courts grant leave to remove too easily. It’s not just third sector campaign groups who feel this. 58MPs supported an Early Day Motion in 2009 calling for the protection of child welfare in relocation cases. The courts are obstinately ignoring well reasoned arguments for change, and their only defence is ‘we need more research before there can be change’ despite a compelling body of research existing which proves them wrong, and none which supports their position.
There will always be competing rights in family law cases. The rights of the child and their welfare must be paramount.
Michael Robinson
http://www.thecustodyminefield.com
http://www.relocationcampaign.co.uk
Joanna on May 18, 2011 at 2:39 pm
My worst nightmare became a reality upon returning to NL for legal advice with my child in 2008…
We left Canada when she was a baby in 2005 – but I later discovered I was wanted for kidnapping my own child!
I returned to NL as I am a Dutch citizen, only to be arrested and jailed and have my 4yr old daughter sent into temporary foster care.
Despite the fact I had full custody and was not in breach of article 3 of the Hague convention on the date of our departure in 2005 – the Central Authorities in NL managed to twist things and find loopholes, ignoring article 12 and stating she had only been in NL for 5 days (regardless of the fact we had left Canada 3 years prior when she was still a baby). In April 2008 my daughter was sent back to her father in Canada and an 18 month battle against my OWN extradition to Canada ensued – finally, in the final appeal – it was decided in May 2009 that I was not guilty of the crime for which the extradition was sought as I had custody on the date in question and thus could not be in breach of custody rights… whilst the removal may be “wrongful” and prevented my ex-husband from exercising visitation rights – it was by no means a kidnapping.
I, along with several other mothers in similar situations, believe it is high time the Draconian Hague Convention was updated to reflect commonly occurring situations in today’s Global Village. MOST of all – the RIGHTS and WELFARE of the children should ALWAYS be more important than so called “habitual residence” My daughter was a baby when we left Montreal and a 4yr old with friends, neighbours and “habits”when she was put on a plane back to Canada in 2008 – if ANYTHING this is a crime against children. Fleeing an unhealthy, abusive environment with your child should not be deemed a punishable crime, there have to be clear exemptions in such cases!
My daughter, now 7 and I have not been together since 2008 and her father refuses to agree to Summer Vsitation DESPITE the scope of the Hague Convention and several attempts to come to an agreement for the sake of our daughter…
sabie on October 21, 2012 at 6:18 pm
What I can see is that there a many narcisstic men out there how do not really care about their child and former partner. When a family breaks down that best is to be surrounded in this times of crisis by close family and friends. But those are back home and not in the expatriate country. In many cases like as in mine it is the dad who had an affair with another women, also an expat. Me as mother I do neither have a financial basis nor family support system in the foreing country. I am now forced by my expartner to live in difficult financial, personal, professional situation. These men are utterly irresponsible, selfish narcissts.
Observer on October 22, 2012 at 10:06 am
No, I’m afraid the irresponsibility, selfishness and narcissism (let’s spell it correctly, please) comes from thinking your child is your possession, and can be uprooted by you whenever you like. If you want to be surrounded by your family and friends, then go right ahead. But the child stays where he/she was born, and where he/she has a home. And please leave your gender hatred out of this. It has nothing to do with family law, but should be addressed with therapy instead.
Observer on October 22, 2012 at 10:01 pm
In the dark ages, men roamed the earth and expected their children and wives to follow them everywhere. If a wife was disobedient, she was thrown out and made destitute, never to see her children again. Men didn’t even have to apply to a court for this idiotic thing called leave to remove. They just did it. If the wife objected, they were labeled selfish and incarcerated for their insolence.
It seems that some would like to still live in the dark ages, but with the genders in the above scenario reversed.
For the sake of goodness…!