Families are increasingly international, which can add an extra layer of complexity if relationships breakdown. What happens when parents who have connections with more than one country cannot agree the arrangements for the children? You would normally apply to the court in the country where the child is habitually resident. However, sometimes it is not clear where this is and there are cases where two or even more courts become involved.
In this blog, we explore what happens when parents can’t agree where a child should live after separation and the impact the child can have on that decision.
What happens when international parents cannot agree where a child should live?
How to proceed best will always depend on the specific case and you should always take specialist legal advice in these situations. However, the following is an example of a recently reported decision, which helps to shed some light on the English court’s approach.
Parents could not agree arrangements for their three-year-old son. The mother applied to the English court and the father had applied to the Indian Court. The English court accepted the mother’s argument that the son was only in India after a family visit, which was intended to be temporary, but during which the father had deliberately taken the mother and child’s passports, so they had to stay over there. The mother eventually had to return to England without her son, who was left being cared for in India by his maternal grandparents. She applied to the court here for her son to be returned to England.
The English judge agreed the child’s home country was England, and therefore the English court should make the decisions about the child. He respected the Indian courts and the decisions they had already made following the father’s application, including that the father was primary carer. However, the Indian courts had not been told exactly what had happened and they did not have all of the information required to decide the child’s longer-term future.
However, rather than just wading in, the judge paused the English proceedings and invited the mother to apply to the Indian courts to put on hold the proceedings over there, so the English court could determine the longer term. He hoped that the two courts could work together in this way and achieve an outcome that was in the child’s best interests.
If the Indian court would not co-operate for any reason, the judge made clear that he may make some orders which would allow the mother to bring the child back to England and stop the father from pursuing his applications in India.
It’s always going to be better for children if parents make a well-planned and considered application for a change of any child’s living arrangements in the country in which a child lives before any travel takes place.
Under English law, it's a criminal offence to take a child out of England or Wales without the other parent’s consent, or otherwise the order of the court. Inevitably, doing things in the wrong order leads to unnecessary stress, cost and a loss of time since internationally there is a commitment to returning children to their home country or state so that the home court is able to make decisions most appropriate to a child’s future and that are in their best interests.
How are a child’s views taken into account if parents cannot agree in which country the child should live?
The views of a child are always a central consideration when deciding a child’s future living arrangements. Typically, the older the child, the greater weight a court will give to that child’s wishes and feelings. A recently reported international child law case addresses this question.
In Q v V (1980 Hague Convention and Inherent Jurisdiction Summary Return)  EWHC 490), the children were aged 17 and 12. The family were Polish and the children had always lived in Poland. Court proceedings had been ongoing in Poland since 2014. The mother had repeatedly alleged the father could not care adequately for the children. The Polish court disagreed and found that the children should live mainly with their father, which they had done for a number of years.
The mother was never able to accept the Polish court’s decision. Consequently, the children had been caught-up in ongoing conflict and court proceedings. In 2018, the mother took the children to live with her in Poland (in breach of the Polish court’s order) and then brought them to live in England with her partner and the children’s half sibling.
The father applied to the English court asking for the children to be returned to Poland with him. Both England and Poland are signatories of the International Convention on the Civil Aspects of Child Abduction (known as the Hague Convention) and commit to ensuring that any decisions are made by the courts in the child’s home country. Children who have been moved without the prior consent of the other parent or the court must usually be returned to their home country for their home court to make any decisions unless there is a real risk of harm or the children are justifiably objecting to the move.
In this case there was not a grave risk of and, although the children were objecting to going back to Poland, the judge felt they were being unreasonably influenced by their mother. The views of children who have been extensively exposed to parental conflict and ongoing litigation for a number of years therefore may carry less weight than the views of those in less conflicted circumstances.
In this case, both children were returned. It’s very unusual for the court to make a return order in respect of a 17-year-old who doesn’t want to return. However, in this case it was appropriate due to the level of conflict both children had experienced.
When international families break up, it can be difficult to decide where a child should live, and it’s always hard for a parent to get separated from their children. If you find yourself in a similar situation our international family lawyers can help you find the best solution for you and your family.