When caught up in the excitement and anticipation of a permanent move abroad it is important that with statistics indicating that one in two marriages end in divorce, one in three women and one in six men are subject to domestic abuse that where the move incorporates and includes children or the anticipation of future children, careful thought and consideration is given to the potential impact that such a move will have on existent or future children.
Failure to do so could leave one or other of the parents finding themselves in a “stuck” situation. That is, whilst the parents’ relationship may have terminated, and there would be nothing to prevent that parent returning to live in the United Kingdom, they may find that they are unable to do so and bring their children with them.
The parent wishing to return to the United Kingdom for a whole variety of reasons, which might include them struggling financially, unable to secure employment either by way of the country’s immigration laws, lack of ability to speak the language or significant cultural differences, may find that they cannot bring their children home with them.
Scenario | Children are Habitually Resident
For example, should a family choose to emigrate to Australia and reside there for sufficient time for the children to be deemed “habitually resident” in Australia and then the relationship break down and the parents separate, should the child’s mother wish to return to the United Kingdom with the children she would be unable to do so as or unless she secures either the permission of the father or a Court Order through the Australian family legal process.
In the event that the mother returns to the United Kingdom with the children either permanently without having gone through such a route or for the purposes of a holiday and then refuse to return to Australia, the father would be able to invoke the Hague Convention here within the United Kingdom which is intended to prevent the unlawful removal and/or retention of children across international borders and secure an Order that the children should be returned to Australia either with or without the mother.
There are very limited exceptions under which the Hague Convention would refuse such a request for return as it would fall to the removing parent to satisfy the Court to the appropriate standard of proof that for children under 16 either:
(a) The father was not actually exercising custody rights at the time of the removal;
(b) That the father had consented to or acquiesced to the removal;
(c) That more than one year has passed from the time of wrongful removal until the date of commencement of judicial proceedings;
(d) That the child is old enough and has a sufficient degree of maturity to knowingly object to being returned and it is appropriate to heed that objection;
(e) That there is a grave risk that the child’s return could expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;
(f) That the return of the child would subject the child to a violation of basic human rights and fundamental freedoms.
Failure to satisfy any of those requirements will see an Order requiring the child to be returned.
It is important therefore to note that the above exceptions relate directly to and only in respect of the child and not the parent.
Consequently and currently therefore the Hague Convention does not take into account a parent who has returned to the United Kingdom to “flee” domestic abuse by the other parent, nor directly the risks and/or hardships that would be experienced by the parent in having to return with the child. Even if the parent required to return the child accompanies the child, there is no certainty that they would not then face separation if in the legal framework of the country to which return is being made, a decision as to who the child should live with may be significantly influenced by the unlawful removal of the child in the first place.
Imapacts on the Hague Convention
Consideration of domestic abuse is starting to potentially have some impact within the Hague Convention as for example in December 2022 the Australian Federal Government announced reforms so that “family and domestic violence can be considered before Return Orders are made for children under the Hague Convention”.
The position can be even more difficult for a person who moves abroad for the purposes of a relationship with subsequently pregnancy and birth.
The Immigration Rules as to the right for that person to then remain in the country following separation and/or indeed divorce can be complicated and might:
(i.) Preclude the separated parent from either working or claiming benefits;
(ii.) Require the separated parent to absent themselves from the country and reapply for immigration status from abroad (but without provision to enable them to take the child/children with them for this purpose);
(iii.) Have very different views and understandings about what would be appropriate in terms of “custody and contact” subject to significant cultural differences in the event of separation and/or divorce.
Consequently in the event that you are considering as a family a move abroad on a permanent basis or indeed intend to move abroad for a relationship with the expectation of children, in amongst all of the excitement it is important that careful consideration is given to what might occur in the event of a family breakdown and the wish of one parent to return to the UK while the other wishes to remain abroad as well as, the immigration laws of the country to which you are intending to move as to the impact and effect of a relationship breakdown in terms of your immigration status and ability to work to ensure that you do not become a “stuck” parent.
If you have any futher enquiries regarding Hague Convention do not hesitate to contact our Family Team.