What to do if spouse threatens to take child back to China?

By Maeve O’Higgins, family law partner at Moon Beever, solicitors in London

I am often asked to advise when one parent (nearly always the mother) wants to take her children back to her home country after the breakdown of her marriage or relationship in the UK. She is requesting what the court calls ‘leave to remove’.

When the other parent wants to remain in the UK and does not agree to the children of the relationship relocating abroad, the dispute can cause enormous distress.

If a parent wants to relocate to China, she may have to get an expert to give evidence about family law in China in the court proceedings. This is because China (apart from Hong Kong and Macau) has not signed the Hague Convention on the Civil Aspects of International Child Abduction 1980. Therefore, there is no treaty between the UK and China to facilitate the return to the UK of a child who is taken from the UK without the permission of the other parent or of the court – which counts as child abduction, a criminal offence.

Similarly, there is no mechanism to enforce an English court order in China, so contact arrangements agreed between the parents cannot be enforced. This will be a factor when the English court is deciding whether to permit relocation of the children to China.

The court must decide whether the mother can be trusted to facilitate contact between the children and their father after relocation. The court will also consider whether she should put additional safeguards in place as a pre-condition of relocation (for example, setting aside money for the father to fund legal proceedings in China to apply for contact, if she reneges on the agreed arrangements).

Despite the difficulty of obtaining permission to relocate to China, I acted for two mothers in heavily contested High Court proceedings in the Family Division in London, in 2014. They had applied to relocate permanently from London to China with the children of their relationships. Both women were Chinese nationals who had lived and worked in London. Both applications were successful, despite being heavily contested by the fathersone a Chinese national, the other an Australian based in London.

Guidelines

Q. What should a parent do if he/she believes that the other parent plans to remove the children from the UK, against his or her wishes, without applying to the court for permission to relocate the children permanently to another country (leave to remove)?

A.  The first parent should contact lawyers immediately. It is important that he/she instructs solicitors who are experienced in dealing with relocation/child abduction to China, which is a non-Hague Convention country. That parent may need to apply immediately to the court for a Prohibited Steps Order, preventing the removal of the children from the UK. If the situation is urgent, he/she can apply for such an order without giving notice to the other parent.

Other steps that may be taken in urgent situations include: obtaining an order for the surrender of the children’s passports and/or prohibiting the other parent from obtaining new UK passports; a Port Alert Order requiring officials at ports and airports to prevent the children leaving the UK; and requesting police assistance to prevent the children being taken abroad (no court order is required for this).

Q. How much does an application for leave to remove cost?

A.   This type of litigation can be very expensive in emotional and financial terms, particularly if the case goes all the way to a Final Hearing. Once court proceedings for leave to remove are under way it is difficult to achieve an agreed settlement. Always ask for a written estimate of your legal costs after your initial meeting with lawyers.

Q. Does it make any difference to the legal position if the parents never married?

A. An unmarried father may not have legal parental responsibility for the children (for example, if his name is not on the children’s birth certificates), although most fathers do. Even if the father does not have legal parental responsibility and does not consent to relocation, you should apply to the court for permission/leave to relocate the children to another country. Removing children abroad without the written consent of the other parent and/or any other person who has legal parental responsibility, or without the permission of the court, will amount to child abduction, which is usually a criminal offence.

Q. How will the court decide the case if I apply for leave to remove?

A. The welfare of the children is the paramount consideration. The judge will take account of factors in the Children Act 1989, known as “the Welfare Checklist”. These include the child’s wishes and feelings (which will be of increasing importance with the child’s increasing age and maturity), the likely effect of any change in his/her circumstances, and how capable each parent is in meeting each child’s needs. Different weight will be attached to the Welfare Checklist factors, depending on the circumstances.

The judge will also consider guidance in the judgment in the important English Court of Appeal case of Payne v Payne [2001], as interpreted by the judges in subsequent court decisions. These factors include the genuineness of the motives of the parent seeking to relocate, whether that parent’s relocation proposals (including her proposals for facilitating future contact between the children and the other parent) are realistic, the impact on both parents of the grant or refusal of permission to relocate, and the genuineness of the motives of the parent opposing relocation. The impact of relocation on the child, in terms of his or her relationship with the parent left behind, will also be very important.

Q. Will the children be asked what they want to happen?

A. The children may feel torn between their parents. It is important to avoid trying to get them to take sides. The children’s wishes and feelings will be of increasing importance to the judge’s decision as they get older, although their wishes and feelings alone will not determine the outcome, being just one of the Welfare Checklist factors the court must consider.

The children’s wishes and feelings will usually be obtained through a CAFCASS (Children and Family Court Advisory and Support Service) officer, a social worker appointed by the court to prepare a report and usually to attend the final hearing. The CAFCASS officer will meet the parents and spend time with the children without either parent being present. The officer will not ask the children directly what they want to happen but will talk to them, in a sensitive way, to ascertain their views. He/she will convey their wishes to the judge and to the parents in his/her report and at the hearing. Sometimes children have strong opinions about what they want to happen.

Q. Can the mother or father move to a second new country without the other parent’s permission or without making a further application to the court?

A. The English Family Court will decide whether the other parent should have permission to move with the children to one particular country from the UK. If permission to relocate is granted and the parent who has obtained leave to remove subsequently wishes to move to a different country, with the children, he or she should make a further application. It is likely that the application will be governed by the law of the country where the children are then living and unlikely that the English court will retain jurisdiction. This means that, if one of the parents does not wish them to move to another country, the parent with whom the children are living should make a further application for leave to remove to the court in the country where they are living.

Q. If the parent left behind in the UK wishes to make an application for more contact with the children after the children have moved abroad, which court will hear that application?

A. In nearly all cases the English Family Court will cease to have jurisdiction to deal with any applications concerning the children soon after they move to the new country because the children will acquire habitual residence in the new country. This means any future applications concerning the children’s upbringing will have to be made to a court in that country.

Where an application is made for leave to remove to China, which is not a signatory to the Hague Convention, practical difficulties in enforcing contact between the children and the parent left behind will be a factor the English court will take into account when deciding whether leave to remove should be granted.

Q. Will the parent who is left behind have to pay financial support (child support or maintenance) for the children, if they move abroad?

A. This will be a matter for the court to decide but it would be unusual for the court to make orders for child maintenance, or for existing child support arrangements to continue, following relocation to another country. More usually the parent left behind will not be expected to pay maintenance for the children and will be able instead to use the money towards the cost of contact with the children (including travel to and from the new country).

Q. Will a parent be prevented from making a further application for leave to remove in the future, if his or her current application for leave to remove is not granted?

A. In most circumstances there will be nothing to prevent a parent making another application for leave to remove later on to the English court, if his or her application for leave to remove is refused. Negative findings made by the original court about that parent and/or his or her motives in bringing the original application may well be relevant to any subsequent application. However, the court will decide any new application afresh so the fact that a parent has made an earlier unsuccessful application will not necessarily preclude a later application being successful.

Maeve O’Higgins, Family Law Partner at London law firm Moon Beever, regularly advises clients about international relocation (leave to remove), including to China.

Tel. 00 44 (0) 20 7400 7770

email: [email protected]

www.moonbeever.com

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