Spending time living abroad is becoming an increasingly popular choice for many families, whether to work and enjoy an "expat" lifestyle, or to travel and explore the world and other cultures.
Many couples will make the decision to move abroad as a family whilst others may move abroad to live with a new partner. If a couple separates whilst living abroad, returning to the UK from a foreign country with children may not be as simple as packing a case and catching the next flight home.
This issue has been highlighted by a campaign group which has recently hit the headlines at home. The UK-based voluntary 'Expat Stuck Parent' group represents parents who have found themselves embroiled in legal proceedings abroad, trying to return to the UK with their children. The group currently represents around 120 parents, who have all split from partners whilst living overseas. The difficulty has arisen where rather than returning home, one parent decides that they want to remain living abroad.
Many people presume that if they are a British citizen and have British children that the courts here will give them protection and help them to return to the UK. This is not always the case.
After a period of time abroad, a person's 'habitual residence' will move with them. This is the case whether they are an adult or a child. Habitual residence is important as it determines which court deals with certain cases.
The Hague Convention exists to protect children from abduction and retention abroad. The treaty states that a child cannot be removed from its country of habitual residence by one parent, without the other parent’s consent. It also provides that any disputes about this will need to be dealt with by the court where the child is 'habitually resident'.
But, for this law to apply, both the original country and the country where the child is being retained need to be members of the Convention. If the country is not a signatory, matters can be even more complex.
In England and Wales, child abduction, where a child is removed from the country by one parent, without the consent of the other parent, is a criminal offence.
A recent report by the Law Commission, Simplification of Criminal Law: Kidnapping and Related Offences, has recommended that the criminal offence of child abduction is extended to include cases where a child is removed from the UK lawfully, but then is unlawfully kept abroad. This recommendation is an attempt to plug the gap which currently left open by s.1 of the Child Abduction Act 1984. This means that, for example a parent who takes a child abroad with the agreement of the other parent for a holiday, but fails to return the child after that holiday, would also be committing a criminal offence.
Further recommendations have also included provision for the sentence for those found guilty of the criminal offence of child abduction be increased from 7 years to 14 years. The Government is due to respond to the report by August 2015.
In child abduction proceedings, a child’s 'habitual residence' has to be assessed in the context of 'settled intention' and the degree that the child has integrated into the country that it is living in. See the recent case of In the Matter of LC (Children) (No 2)  UKSC 1.
This assessment can be complicated and is not something that an individual can second guess without obtaining proper legal advice.
Cases going through the courts abroad can take years to resolve and can cost thousands of pounds. Parents often find themselves torn between staying and fighting a case through a foreign legal system, often with additional language barriers, or returning home without the children whilst the case works its way through the court.
If you are considering relocating and have children, it is important that you fully understand how the law, in both this jurisdiction and the new location, will view you and your children. You should also think about what safeguards you can put in place to protect yourself and your children if things don’t work out and you want to return home.
It is not simply a case of the English courts looking after you because this is where you were born or grew up. There will be a point where the English court cannot make a decision about your relationship or your children, depending on how long you have been away for.
Whether you are moving abroad to join a partner, or going as a family unit, it is wise to seek legal advice before embarking on this new journey.
The TLT Family team have specialist lawyers based in England and Scotland who can advise about international relocation, cross-border matters and issues affecting expatriate families, wherever you are based. Please contact us for more information about how we can help resolve the difficulties that you and your family are experiencing.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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