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Child arrangements – International
Child arrangements – International
In situations where parents, or other persons with care for a child, wish to leave, or return to, England and Wales this can be the cause of considerable friction between all concerned if the child arrangements are not agreed. It is important that, if a move is being considered, or if a child has already been removed, that prompt action is taken to resolve any possible challenges.
As a broad principle, it is a criminal offence to remove a child from the jurisdiction of England and Wales without the consent of all persons with parental responsibility or leave of Court. This applies to taking a child on holiday (unless you have a live with order in your favour as set out below) as well as more permanent arrangements.
Whilst holidays can generally be easily resolved, the following are some more difficult situations that can arise and a brief guide on what action you can take in each.
Removing a child from England and Wales
If you are looking to move abroad with a child in your care, and are unable to obtain the consent of all other persons with parental responsibility, then you can apply to the court for a specific issue order, granting permission for the removal of the child.
The court will have paramount consideration of the welfare of the child and take into consideration many circumstances including, but not limited to, the child’s wishes and feelings, the likely effect on the child of the change in living arrangements, their age, sex, and background (including cultural background) and relationship with the other parent amongst other things.
This sort of application requires careful preparation in terms of proposed housing, schooling, language issues, proposals for contact with the remaining parent and so forth. It is important to seek legal advice at an early stage if this is being considered.
Securing the return of a child from another country
If a child is taken to another country there the issue can be divided into one of two broad categories:-
Removal to/from a Hague Convention country
If the child has been wrongfully removed to a country that has signed up the Hague Convention on Child Abduction, from another signatory State, you can apply for the child to be promptly returned to their home country.
For example, if the child, living in England, has been removed to Israel, an application can be made to the High Court for return of the child and, upon the order being made, Israel should enforce the order and the child be immediately returned. Conversely, if the child was brought to England, from Israel, an application could be made, and heard, in Israel for the return of the child to that country, the basic premises being that children issues should be determined in the country where the child lived before being wrongfully removed.
Removal to a non-Hague Convention country
If either country (from which a child has been removed from / to) has not signed up to the Hague Convention on Child Abduction then an application will have to be made in the country to which the child has been wrongfully removed. This can result in increased challenges securing the return of the child and, in some countries, it may be very difficult, if not impossible, to locate and then secure the return of a child.
Preventative steps to reduce the risk of abduction
If the court has not made a child arrangement order in relation to the child then, as a starting point, neither parent (or any other person with parental responsibility) can remove the children from the United Kingdom without consent.
However, if there is a risk that a child will be taken abroad, without the agreement of all persons with parental responsibility, the following additional measures can be taken to try and prevent the child’s removal:
- Child arrangement order
The court can make an order setting out the living arrangements for a child, including with whom they shall live and how much time they shall spend with either parent. This will often be twinned with a prohibited steps order (see below).
It should be noted that a child arrangement order will enable the person, with whom the child ‘lives’, to leave the country (without the need for consent) for up to 28 days and will, therefore, only act as an effective preventative measure for the person with whom the child does not ‘live’.
- Prohibited steps order
The family court can make an order, upon an application being issued, preventing the removal of a child from England and Wales.
- Port Alert
Where there is a serious risk of removal, a parent with a live with order can apply for a port alert via the police which will, if approved, notify all UK airports and seaports for a 28 day period to prevent the removal of the child from the UK.
- Family Law Act 1986 orders
There are a range of orders under the Family Law Act 1986, including power to disclose a child’s whereabouts, for delivery up of a child by the police, and to obtain the surrender of a UK passport.
Generally, international children issues often involve complex legal issues for all concerned. If you have any questions about preparing for / defending an application you should obtain specialist legal advice as soon as possible as these are generally very urgent issues.
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