Possibly the worst thing that could happen to any parent is having your children taken away by the other parent, and even worse to another country. Sadly this is a growing issue when travel between countries is so easy,and more and more relationships involve one party from another country. This may be fine when the relationship is strong but what happens when the relationship breaks down?
Often the foreign party will feel ostracised; on finding they no longer have any real links with their adopted country they may seek to return home, taking the children with them. As family law solicitors we often see such issues before the family courts, when a judge is asked to decide where those children should live. Of course how this is decided is based on the particular facts of each case but the court will be concerned firstly with the welfare of the children and also with establishing their ‘habitual residence’ i.e. where they usually live.
The recent case of LCG v RL  EWHC 1383 (Fam) highlighted these issues. After the breakdown of the relationship the Spanish mother wished to return home to Spain with the children, who had had previously visited Spain each summer. On 24th July 2012 the father drove the mother and children to the airport, accepting that he did not know when they would return. The father had limited contact with the children until they returned to spend Christmas with him. They were due to return to Spain in January 2013 however the father refused on the basis that the children had said they did not want to return.
A court application was duly made by the mother. Ultimately the court ordered the return of the children to Spain. There was great weight attached to the conduct of the father which should be a warning to parents who find themselves in similar situations. The Judge looked at the intentions of the parties at the time of removal and essentially found that:-
- The father had agreed that the mother could go to Spain;
- The father accepted and believed that the mother and children were leaving indefinitely and going to live in Spain, albeit resentfully;
- Some of the four children had been informed of the move prior to it taking place;
- The father did not ask the mother to return the children;
- The children had settled in their new home, at their new school and had made new friends;
- The children lost their ‘habitual residence’ in England and Wales on 24th July 2012 and were ‘habitually resident’ in Spain when they were due to be returned in January 2013.
Perhaps most importantly the Judge commented that had the father objected to the removal this would have been a significant factor. The father’s conduct (both before and after removal of the children) was such that he ‘acquiesced’ in the removal, meaning that he effectively let it happen.
So what are the lessons to take from this if it happens to you? Firstly if both parents have parental responsibility for the children unilateral decisions should not be made about important matters such as where the children should reside. In an ideal world this should be decided by agreement. If it can’t be decided by agreement then the correct approach is to make an Application to the Court to determine the issue in dispute. One parent should not unilaterally remove the children however threats to do so all too frequently come to fruition.
If this does happen to you do not delay in making an Application to the Court. The longer the children are in their new home the more they will become integrated into their new lives and in most cases this will hold a lot of weight with the Court.