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International families and the price of relocation without consent
The team at Kingsley Napley LLP examine the thorny issue of family relocation without consent
The recent case of a British mother of three young children who was extradited from the United States to England to face criminal charges relating to child abduction and passport fraud serves as a stark reminder of the heartbreaking predicament that an international family can face upon the breakdown of a relationship.
In October 2015 the mother moved from England to Alaska to live with her American husband. She had given birth to their son in May 2015. She already had two daughters from her previous marriage to a British man. She took all three children to Alaska with her, despite having previously been refused permission to do so by her daughters’ father and the English court.
It is a criminal offence in England for a parent to remove a child from the United Kingdom without the consent of all other persons with parental responsibility for that child (usually the other parent) or a court order. In the present case, the children’s father reported the mother’s abduction of their daughters to the English police. In due course an extradition request was made to the US. In January 2018 the mother was detained pending her extradition to UK (which took place in April 2018), leaving her daughters in Alaska with their stepfather and younger half-brother. The mother is now in custody in England awaiting a criminal trial and the family remains separated across two continents.
The situation is catastrophic for all involved: the daughters have not seen their father since they left the UK, the father will most likely have to ask the Alaskan courts to deal with the arrangements for his daughters as the children are now settled in Alaska, and the mother is in custody with all three children being deprived of any contact with her.
For the events of 2015 to lead to criminal proceedings and a successful extradition request is unusual. Moreover, such circumstances do not necessarily result in the return of the child. More usually, and effectively, the left behind parent will apply for the child’s return pursuant to the Hague Convention 1980 on the Civil Aspects of International Child Abduction, to which both England and the USA are signatories. The Hague Convention seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure for their prompt return. As a result, parents who have relocated without permission can find themselves in a position where their children are ordered to return to the country that they have left, causing both emotional and practical difficulties.
London is home to many international families, from the USA and elsewhere, many of whom move here to follow the main breadwinner’s career. If the parents’ relationship breaks down, many people’s first instinct is to want to return to the support of their wider family and network of friends in their native country at this difficult time.
Accordingly many parents living here are surprised to learn that they cannot simply decide to return to their native country with their children without the other parent’s permission, whether for a holiday or a permanent move. My colleagues and I are regularly consulted by parents living here with their children who wish to take their children back to live in their native country with them or who wish to relocate to another country with their children, perhaps to pursue a job opportunity, a better life or a new relationship. Equally we are consulted by parents who want their children to stay with them in England.
If the left behind parent does not agree to the move, the parent who wants to take the child to live abroad has to apply to the court for permission. The parent who wants the child to stay can try to defend the application. In determining an issue regarding a child, the child’s welfare is the court’s paramount consideration. The court has to decide whether it is in the best interests of the child to grant the application, in accordance with the welfare checklist at section 1(3) of the Children Act 1989. The court will want to be satisfied that the parent wishing to relocate has a sensible plan and a genuine reason for wishing to move. Both parents’ actions and motivations will be scrutinized by the court and accordingly it is important for the applicant parent to be as organised as possible from the outset, and to have a realistic plan that supports the relationship between the child and the left behind parent.
The Alaskan case is an extreme and harrowing example, but reminds us that parents should take legal advice as soon as it becomes clear that there may be a dispute about whether or not a child can leave England, whether for a holiday or a permanent relocation. The alternative is to risk the involvement of law enforcement agencies with an appetite to bring criminal and extradition proceedings, and to face the awful consequences that can flow from them.
This article was written by Rachel Freeman, Partner in Family and Sarah Dodds, Associate in Family, with input from Edmund Smyth, Senior Associate in Criminal Litigation. To find out more, see www.kingsleynapley.co.uk