International child relocation

08 Oct 2012

There were some powerfully emotional headlines and some extremely distressing footage this week as four girls, aged between 9 and 15, were dragged from their mother in Australia, kicking and screaming onto a plane to return to their father in Italy.

It seems that the girls’ Australian mother who was married to their Italian father, had taken them to Australia for a holiday more than 2 years ago and then stayed there with them against the father’s consent.

After a lengthy international legal battle, an Australian Judge Ordered that the girls must be returned to Italy and for the dispute as to with which parent the girls should live to be determined there.

As is the United Kingdom, Australia and Italy are signatories to the Hague Convention on International Child Abduction. The purpose of the Convention is to secure the prompt return of children who have been wrongfully removed to or retained in any other contracting State and to ensure that rights of ‘custody and access’ under the law of one contracting State are respected in other contracting States.

This means that if a Court finds that a parent has wrongfully removed their child from one Country to another, providing both Countries are signatories to the Hague Abduction Convention, the Court must Order that the child is immediately returned to the Country from which he was wrongfully removed. This may well be in spite of the fact that the child may not wish to be returned to that Country and to the care of that parent. It is then for the Court in the original Country to determine where and with whom the child shall live, adopting the legal principles that are applicable in that Country.

The process of determining whether a child has been wrongfully removed or retained can be quite complicated and involves an investigation into the child’s habitual residence which is, in itself, by no means straightforward and legal battles, therefore, can be extremely lengthy, drawn-out affairs. Prevention, therefore, is always better than the cure.

As the World becomes smaller, it is becoming increasingly common for families to be multi-national and when relationships end, for one parent to decide they want to return to their home Country, usually together with the children.

In this Country, the Children Act 1989 provides that where a Residence Order is in place, no person may remove a child from the United Kingdom without the written consent of every person who has parental responsibility or an Order of the Court allowing them to do so. Where there is no Residence Order in place, then the Child Abduction Act 1984 prevents the removal of a child without the consent of those with parental responsibility or an Order of the Court.

Therefore, if a parent wishes to permanently remove a child from the United Kingdom, they will need either the other parent’s written consent or, in the absence of this, an Order of the Court allowing them to do so. Should the remaining parent discover that the other parent is intending to leave the Country together with the child without having obtained his consent, he is able to make an application to the Court for an Order preventing that removal.

In this Country, the Children Act 1989 provides that the Court’s paramount consideration when determining any application is the child’s welfare and it will only make an Order allowing their removal from the Country if it is satisfied that it is in the best interests of the child’s welfare to do so.

Clearly, we do not know all the facts with reference to the recent Australia/Italy case, nor can we comment on how the Courts in Italy will determine the outcome. However, had this been a case of wrongful removal from the United Kingdom to Australia, having secured their return, the Courts here would then have to determine what was in the best interests of the girls’ welfare. In doing so, the Court would apply the factors set out in the Welfare Checklist which include each child’s ascertainable wishes and feelings having regard to her age and level of understanding; her physical, emotional and educational needs; the likely effect on her of any change in her circumstances; her age, sex, background; any harm the child has suffered or is at risk of suffering; how capable each parent and any other relevant person is of meeting the child’s needs and the range of powers available to the Court.

Whilst it may appear, therefore, that these girls all wished to remain living with their mother in Australia and not to be returned to their father, the Courts here would have to consider all the welfare factors in determining what was in their best interests and not just the girls’ wishes and feelings. There is no guarantee, therefore, that the Courts in this Country would decide that they should ultimately be returned to their mother in Australia.

Unfortunately, in today’s economic climate and with the reduction in the availability of public funding (Legal Aid), many parents are choosing not to obtain legal advice and are unaware of the legal implications of removing children from the United Kingdom. Many are choosing to do so without having first obtained the other parent’s consent or an Order of the Court and outcomes such as those we have seen in recent press, therefore, are only likely to become more common. As a result, the children involved in these international wrangles are only likely to suffer significant harm as a result of their parents’ desires to leave the Country.

Commenting on this issue, Dawn Gore an expert in children matters in the Family Team at Trethowans said; " Sadly we are seeing an increasing number of cases involving one parent looking to start a new life abroad with their children when the other parent does not wish for this to happen.  We recommend that people in this position seek legal advice at the very earliest opportunity."