Disputes over children with an international element

Year Published: 2012

The Hague Convention 1996 on the International Protection of Children came into force in the UK from 01 November 2012. The Convention has uniform rules determining which countries’ authorities are competent to take necessary measures. These rules, which avoid the possibility of conflicting decisions, give the primary responsibility to the authorities of the country where the child has his or her habitual residence – but also allows any country where the child is present to take necessary emergency or provisional measures of protection. The Convention determines which country’s laws are to be applied and provides for the recognition and enforcement of measures taken in one contracting state, in all other contracting states.

The Convention provides a structure for the resolution of issues of custody and contact, which may arise when parents are separated and living in different countries. The Convention avoids the problems that may arise if the Courts in more than one country are competent to decide these matters, and the recognition and enforcement provisions avoid the need for re-litigating custody and contact issues. The Convention also ensures that decisions taken by the authorities of the country – where the child has his or her habitual residence – enjoy primacy. The cooperation provisions provide for any necessary exchange of information and offer a structure through which, by mediation or other means, agreed solutions may be found.

When I began my career as a family lawyer over twenty years ago, cases involving an international aspect were few and far between. The cases which I did deal with in those early years tended to be, what might be considered, ‘true’ child abduction cases where one parent had fled the country, taking the children with them – and the parent left behind was left wondering which country the children had gone to and, if that could be ascertained, going through a long and tortuous process to try and ensure their children’s safe return.

How times have changed. Nowadays, it is not at all unusual to have people marrying from different countries and with very different cultural backgrounds. When those marriages end, real issues are raised with an international dimension. Often one parent wants to return to their country of origin following the breakdown of a relationship – and this raises difficult questions of where children should live, which culture they should follow and how their relationship with the parent they are not living with permanently is to be managed.

Conventions do now exist and the 1996 Convention is to be welcomed as it plugs a procedural lacuna that currently existed. The last thing a parent wants to hear when they consult me about real worries over their children’s future is that they could face not only Court proceedings in this country, but also Court proceedings in a different jurisdiction, which may produce conflicting outcomes leading to large legal costs and continued litigation in the future.

If you do find yourself in a situation where the laws of a different country may become relevant, it is important to take early advice from a solicitor well versed with the international conventions that exist. In certain situations, it can be extremely important to take early action to avoid decisions being taken in a foreign jurisdiction which it can then be difficult to overturn.

To speak to us about a family / matrimonial legal matter please call Chester lawyer, Liz Bottrill in our Family team on 01244 305 922.

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