UK – England and Wales

How can you prepare child relocation from or within the UK – England and Wales? What if your child has been relocated without your consent?

The UK is located in the continent of Europe, but since Brexit no longer a member state of the European Union. The European Court of Justice has no jurisdiction over the UK since Brexit, however the case law of the ECJ in child abduction cases can be expected to continue to be of influence in the UK. Since Brexit, the Council Regulation (EC) No 2201/2003 of 27 November 2003 and its replacement Council Regulation (EC) No 2019/1111 of 29 June 2019 (Brussels II ter) are not valid in the UK.

The UK is a member of the Hague Convention on Child Abduction.

The UK has a Judicial Protocol with Egypt (Cairo Declaration) and with Pakistan (Pakistan Protocol).

We will explain what this means for your options.

Lawyers and mediators in UK – England and Wales

We provide a list of lawyers and mediators in United Kingdom – England and Wales, who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.

 

Parental authority: UK – England and Wales

Decision making model

Authority

When the parents are married they will automatically have parental responsibility together. Parerantal responsibility means: all the rights, duties, powers, responsibilities and authority that, by law, a parent has in relation to the child and his/her property.

An unmarried father can have parental responisibility:

  • if he is registrered on the birth certificate
  • if he and the mother make a parental responsibility agreement
  • if the court orders that he should have parental responsibility
  • if he has obtained a residence order for the child
  • following fertility treatment.

Children are considered adults at 18, however child orders often last until the child is 16.

After divorce

After divorce in genaral both parents retain parental responsibility. The court does not automatically make orders about the child (residence, contact). It will do so only if necessary.

In the HCCH country profile the UK sets out to whom rights of custody are attributed by operations of law:

The law in England and Wales with regards to rights of custody is primarily governed by the Children Act 1989 (CA 1989) which created the concept of “parental responsibility”. Those with parental responsibility have rights of custody.
The following persons will have parental responsibilty; all references are to the CA1989 unless otherwise stated.
(i) mother of the child – sections 2(1) and (2)
(ii) father who was married to the mother at the time of the child’s birth – section 2(1)
(iii) unmarried father whose name is registered on the birth certificate after 01.12.2003 – section 4(1)(a)
(iv) unmarried father who have entered in to a parental responsibility with the mother – section 4(1)(b)
(v) unmarried father who has obtained a parental responsibility order – section 4(1)(c)
(vi) umarried father who has obtained a residence order for the child – section 12(1)
(vii) a step-parent who has entered in to a parental responsbility agreement with each parent who has parental responsibility – section 4A
(viii) a step-parent who has obtained a court order for parental responsibility – section 4A
(ix) female partner of mother who was in a civil partnership at the time of the child’s birth – section 2 (1A)
(x) female partner of mother whose name is registered on the birth certificate – section 4ZA(1)(a)
(xi) female partner of the mother who have entered in to a parental responsibility agreement with the mother – section 4ZA (1)(b)
(xii) female partner of the mother who has obtained a parental responsibility order – section 4ZA(1)(c)
(xiii) female partner of the mother who has obtained a residence order for the child – section 12(1A)
(xiv) any person who has a residence order – section 12(2)
(xv) any person who has a special guardianship order – s14A
(xvi) A local authority if there is a care order or interim care order in force -s33(3)
(xvii) an applicant of adoption on the making of an adoption order or on an adoption agency placing a child with the applicant for adoption and on an application for an overseas adoption – Adoption and Children Act 2002
(xviii) an adoption agency with authority to place a child for adoption – Adoption and Children Act 2002
(xix) A guardian as per s5 CA 1989

See Children Act 1989 (http://www.legislation.gov.uk/ukpga/1989/41/contents)
and Adoption and Children Act 2002 (http://www.legislation.gov.uk/ukpga/2002/38/contents)

Traveling with children: UK – England and Wales

If a parents wants to travel abroad with the child, he or she needs permission from the other parent, if the other parent also has parental responsibility. You can download a consent form from the website of the UK government.

Based on s13(2) Childrens Act 1989 the custodial parent (the parent with whom the child lives) van remove the child from the jurisdiction for a period of less than one month without the parent’s consent. 

This does not change the fact that the court can make child arrangement orders prohibiting travel. 

 

Decision making model

Child relocation: UK – England and Wales

Court order

If a parent wants to move with the children and the other parent with custody refuses to give permission, the parent who wants to move can request permission from the court.

The other parent can ask the court to make an order prohibiting the relocation or for an order requiring the return of the child.

Criteria: Re TC and JC 

Relocation applications are subject to the welfare principle (s1(1) Children’s Act 1989), which dictates that the child’s welfare is the court’s paramount consideration. In the case Re TC and JC (2013, EWHC 292 (FAM)), the court shows a clear guidance on the court’s approach to relocation applications:

  • The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.
  • The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. Such guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.
  • The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.
  • The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):

a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?

b) Is the mother’s application realistically founded on practical proposals both well researched and investigated?

c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

d) Is the father’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?

e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?

f) To what extent would that detriment be offset by extension of the child’s relationships with the maternal family and homeland?

  • Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted.
  • There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more that a reflection of the reality of the human condition and the parent-child relationship.
  • The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue of either the time spent with each of the parents or other aspects of the care arrangements.

The Court of Appeal cases Re K (2011, EWCA Civ 79), Re F (2012,  EWCA Ci 1364) and Re F (2015, ECWA Civ 882) show that the focus must be on the child’s best intersts having regard to court guidance, but such guidance and the factors set out are not presumptious but part of the overall welfare analysis.

The case Re F from 2012 held that there is a need for the court to carry out

1) a holistic comparative balanciding exercise of the realistic options before the court including the plans of both parents, and

2) a proportionally evaluation in respect of the interference with the established family life the children had with the ohter parent (so taking into account that the effect of an international relocation is such that the Article 8 rights of a child are likely to be infringed).

Relocating a child to a different part of the UK without permission of the other parent or the court, is not a crime.

Child abduction: UK – England and Wales

Decision making model

Hague Convention

The UK is a party to the Hague Convention on Child Abduction. The obligations that the convention creates are elaborated in the Child Abduction and Custody Act 1985.

Government

For more information, you can visit the Government website.

The Central Authority (International Child Abduction and Contact Unit (ICACU) is a first point of contact if you want your children to return. The ICACU prefers to communicate with the Central Authority of the applicant’s country. The ICACU has a panel of specialized solicitors who can represent you. The ICACU will send your return application to a sollicitor from this panel. The solicitor will contact the abducting parent and will promote a volutary return during all stages of the judicial proceedings. This representation of the applicant is for free. You are not obliged to contact the Central Authority first.

Court procedure

In the UK all child abduction cases are heard by the Family Division of the High Court of Justice. The hearing usually take place in the Royal Courts of Justice in London. The High Court in principle gives its judgment within 6 weeks. There is no automatic right for appeal. Permission to appeal is required. An appeal must be filed within 21 days. The appeal procedure can take upto 3 months.

Child participation

Children can be heard in the return procedure, if article 13 (2) of the Convention (grave risk exception) is relied upon. The child can be heard by an independent expert who prepare a report for the court or by the child’s own legal representative. Normally the child’s views are heard through the Children and Family Court Advisory and Support Services (CAFCASS). The CAFCASS reporter will meet the child.

Mediation

Mediation and volutary return will be promoted at all stages. 

Execution

A return order can be suspended pending an appeal at the request of either party.

The court can direct who is to make arrangements for the return and who is responsible for the costs.

If the applicant needs to start a procedure to enforce a return order, he can get free legal aid for that procedure as well.

Several coersive measures are available to enforce a return order, such as: intervention by government agency (police), removal of the child from the abducting party, imprisonment and pecuniary measures. 

Prevention

If you think your child is in the UK, but you do not know exactly where, the UK Central Authority can help you locate your child. You can still start a return procedure and a location order can be applied for within the proceedings. This can include third party disclosure orders against public bodies, private companies and individuals.

If you fear that your child will be abducted from the Netherlands to another country, or otherwise disappear from view, various measures can be taken:

  • child’s passports to be deposited with authorities
  • alleged abductor’s passport to be deposited with authorities
  • obtain orders to prevent the removal of the child
  • issuing border and/ or port alerts
  • temporary placement of child in institutional care.

Legal aid

The applicant can get free legal aid from the panel sollicitor from ICACU. The alleged abducting parent will have to arange legal aid by him self. But he or she can also contact the panel sollicitors. To find out whether you can get subsidized legal aid, you can visit the government website.

Decision making model

For more details: check the country profile of UK – England and Wales on the website of HCCH.

Criminal law : UK – England and Wales

Criminal law

The Child Abduction Act 1985 made child abduction a criminal offence, if a person connected with a child removes or sends that child out of the jurisdiction without the appropriate consent.

Information on the whereabouts

The Child Abduction Act 1985 also gives the court a wide range of possible interim orders to be taken against any person who the court has reason to believe may have relevant information, to disclose this information in an attempt to find out the whereabouts of a child (s24A).

Decision making model

Relevant websites : UK – England and Wales

Permission form to travel with children

UK government website : Concent letter for minors traveling abroad

 

Implementing act

UK government website : Child Abduction and Custody Act 1985

 

Government website on Child Abduction:

www.gov.uk : International Parental Child Abduction

 

Central Authority

www.hcch.net : UK Central Authority

 

Subsidized legal aid

www.gov.uk  : Legal aid

Blogs about UK – England and Wales

 

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Relevant case law in UK – England and Wales

Temporary, but not

Temporary, but not

C (Children) (2018) UKSC 8 United Kingdom Supreme Court 14 February 2018, HC/E/UKe 1453  The mother was to stay with the child in England for 8 weeks. Later, the father agreed to a one-year stay. The court ordered that 8 weeks turn into 12 months The mother and father...

no return during pending asylum application

no return during pending asylum application

G v G (2021) UKSC 9, The Supreme Court of the United Kingdom 19 March 20221, HC/E/UKe 1509 The mother and father live together in South Africa. The child was born in 2012 and had always been habitually resident in South Africa. In 2014 the parents separated. Since the...

Lawyers and mediators in the UK – England and Wales

Carolina-Marin-Pedreno

Carolina-Marin-Pedreno

Lawyer

Sulema Jahangir

Sulema Jahangir

Lawyer

Amy Rowe

Amy Rowe

Lawyer

Forum Shah

Forum Shah

Lawyer

Lina Khanom

Lina Khanom

Lawyer