September 7, 2016
Parents looking to move to another country with their children are rarely advised that, following that relocation, should one of the parents choose to return home with their children – perhaps following a separation – they may not be allowed. In fact, thousands of parents across the world are currently experiencing difficulties.
International law provides that when you arrive in a new country with the intention of staying there, the ‘habitual residence’ of your child changes to the new country. Accordingly, both parents must agree that the children can be taken back to the original country. Or if not, an application for permission to relocate again must be made to the local court (the court in the country which you now reside). The laws governing how a court treats such an application varies widely from one country to another. Permission to return is by no means a given and specialist legal advice in that particular country will be required.
Simply leaving and taking your children home is not an option as the removal of a child without the knowledge and consent of the other parent constitutes an offence of child abduction. There are 81 countries in the world which are signatories to the Hague Convention on the Civil Aspects of International Parental Child Abduction 1980. The purpose of the Hague Convention is to secure a common accord and aim that a child removed (or retained) across an international border without the consent of all parents who have the right in law (generally the child’s parents) should be speedily returned to the state of the child’s habitual residence to enable the court in that state to make a decision about the child’s future. Failure to do so is considered child abduction and is a criminal offence punishable with imprisonment. There are only narrow defences to a Hague Convention abduction which rarely succeed.
So, what can parents do to protect themselves in the event, for example, that one of them decides he or she does not like living in the new country but the other does or if the relationship comes to an end? As with all important decision making processes, ensure you are armed with all information before you relocate and are therefore able to make an informed decision. It is strongly advisable that you and the other parent consider such issues before the initial relocation takes place. Family mediators and lawyers will be able to provide further advice and aid discussions between you to ensure there are pre-agreed arrangements in place to cover the various scenarios that could arise.
Although there is currently no “pre-migration contract” in existence, the organisation, Expat Stuck Parent, is working to produce one which will be similar to that of a Pre-Nuptial Agreement. Such an agreement would not be legally enforceable in a court, but would be strong evidence of the arrangements that were agreed should a parent wish to return home with their children. While the interests of the individual children in every case are likely to take precedence, such an agreement is clear and cogent evidence of intention and undoubtedly significantly better than nothing. A copy of a potential contract, together with lots of other information about the Hague Convention and Expat Stuck Parents can be found at www.expatstuckparent.org