Posted: 26/06/2018
Temporary relocation cases tend to fall into two categories. The first category is for a holiday with a typical duration of a few weeks, for example to allow a child to return to a mother’s home country to see wider family during the summer holidays. The second is a stay of a longer duration, perhaps of several months. It may be to enable a child to have an extended stay with family or to allow the parent to pursue a temporary job opportunity.
Section 13 of the Children Act 1989 permits a person with whom a child lives (as recorded in a court order) to remove a child from the United Kingdom for a period of one month without the permission of the court or the other parent being required. If a parent wishes to prevent this, because they fear that the child will not be returned and will be abducted, an application for a prohibited steps order is necessary. In cases where no order is in place, there is usually little difficulty in obtaining permission to relocate to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) if it is for a period of a few weeks. The court has adopted a pragmatic approach that prioritises a child being able to enjoy a holiday with a parent provided there are satisfactory return mechanisms in place in the event that the holiday becomes longer than anticipated and agreed.
It is cases in which visits to other jurisdictions are of a longer duration which have been causing family law practitioners greatest concern in recent months, given the Supreme Court judgment handed down in the case of Re C (Children) [2018] UKSC 8. Crucially, this judgment clarifies that a child’s habitual residence can change without the agreement of the other parent, even in circumstances whereby a temporary move has been agreed but the travelling parent has elongated that visit without the consent of the other parent. In the case of Re C the father (living in Australia) agreed with the mother that she could travel to England with the two children, who were then aged four and two, to visit the maternal grandparents.
The trip was intended to be an eight week visit during the mother’s maternity leave which the mother extended by four weeks and (with the father’s reluctant agreement) to one year. By May 2016, approximately one year after arriving in England, it had become clear that the mother did not intend to return to Australia although this was not clearly expressed by her until June 2016. She had enrolled the older child in pre-school in September 2015 and, by November 2015 had made an application to the Home Office for British citizenship for both children who had travelled to Britain on six month visas. The mother claimed to the immigration authorities that it was unsafe for her and the children to return to Australia given the domestic abuse which she had allegedly suffered at the hands of the father. A letter in support of her application to the UK immigration authorities stated: ‘It cannot be in doubt that the children’s centre of life is, and will be, in the UK where the children are registered as requested.’
The father made an application for the children to be returned to Australia in accordance with the Hague Convention. The mechanisms which allow for a child to be returned to the jurisdiction in which they are habitually resident are usually slick and efficient where the child has been taken to another jurisdiction which is a signatory to the Hague Convention. However, in the circumstances of Re C, the court found that the children involved had become habitually resident in England given that they had been in the jurisdiction for a period of one year and were settled in schools and generally integrated into English life. The Supreme Court was asked to determine what place the habitual residence of a child occupies within the scheme of the Hague Convention. It held that: ‘The Convention cannot be invoked if by the time of the alleged wrongful act, whether removal or retention, the child is habitually resident in the State where the request for return is lodged. In such a case, that State has primary jurisdiction to make a decision on the merits, based on the habitual residence of the child and there is no room for a mandatory summary return elsewhere without such a decision. It may of course be that in making a merits decision, the court of the requested State might determine that it is in the best interests of the child to be returned to his previous home State…’ (paragraph 34).
As a result, in Re C, the court held that the Hague Convention does not provide for a mandatory summary return of a child in circumstances whereby the child has become habitually resident in another jurisdiction.
A key point in the case of Re C is whether the father could have acted earlier to secure the return of the children. In situations such as those in Re C, it may become apparent to the non-travelling parent that the children are not going to be returned at a relatively early stage. It might be that it is clear that the children will not be returned even before the agreed term of absence has expired. In Re C, it was held that a wrongful retention by repudiatory retention (ie where the mother decided before the agreed return date that she would not be returning the children) can occur before the end of the agreed period abroad.
In addition to providing clarification on complex legal concepts in relation to repudiatory retention and habitual residence of children, the case highlights the need to adopt a practical approach in cases of temporary relocation. Temporary relocation cases are ones where a proportionate approach needs to be adopted, perhaps more than any other type of relocation case. In the event that a court application is necessary, it is likely to need to be heard urgently and court time may not be available. The court has shown that the value of having a holiday abroad with a parent carries great weight and courts will usually seek to put in place protective measures to secure the child’s safe return rather than refuse permission for a foreign holiday.
It is therefore appropriate to consider acceptable safeguards which can be put in place to provide reassurances to the non-travelling parent, particularly given that Re C has clarified that once children have become habitually resident in the destination country, a summary return pursuant to the Hague Convention will not be granted where the children have travelled to England and Wales.
Safeguards might include a declaration that the children’s habitual residence is in England and Wales and that it is in the best interests of the children for them to be returned. Agreements for the safe return of the children can be notarised and undertakings can be given to the court. However, declarations such as this are by no means a guarantee that the habitual residence of the children will be accepted by the court; habitual residence is a question of fact and can change. Regardless of any declaration, the full circumstances of the case are likely to be considered, including whether the child is at school, healthcare they are receiving and their general level of integration. Alternatively, or in addition to these safeguards, financial safeguards can be offered such as a monetary bond. Careful consideration needs to be given to the appropriate level of bond offered, which, of course will be different in different circumstances. In the case of Re L (Removal from Jurisdiction: Holiday) [2001] 1 FLR 241 (FD), in addition to swearing on the Koran, the parent wishing to travel to the UAE was required to deposit a bond of £50,000. Relocation cases are generally seen as ’all or nothing’ cases and applicants hoping to relocate may be prepared to forsake a significant proportion of their wealth in order to relocate, particularly in ‘going home’ cases. In many circumstances, there may not be sufficient funds available for a large monetary bond to be offered and a legal charge secured on an asset such as the parent’s home, to be released upon their return, may be appropriate. The charge can be drafted to allow for it to be triggered in favour of the left behind parent if the travelling parent does not return with the child by a certain date. These funds will then allow for the left behind parent to fund legal costs to return the child.
If the country which is being visited is a Hague signatory, a mirror order can provide a valuable safeguard. However, a mirror order cannot always be obtained until a child is physically present in the new country. It is important that lawyers local to the left behind parent therefore liaise with lawyers in the relocation jurisdiction to ensure that any safeguards which are offered have meaning and can be implemented in the destination country.
As a consequence of Re C, many family law specialists have advised that extreme caution is recommended when a client wishes to agree to a temporary relocation. In reality, the safeguards which can be put in place act as a deterrent but they are unlikely to discourage the most committed parent who wishes to relocate. Financial penalties and threats of the implications of breaching an undertaking may be considered to be a penalty worth risking for a parent who is committed to leaving the jurisdiction permanently with the children of the family.
Ultimately, there needs to be an awareness that the most committed parent may well accept the most onerous of safeguards and be prepared to breach them. In relocation cases compromise is rare. The outcome means that, inevitably one parent will feel they have ‘won’ and the other that they have ‘lost’. A parent who wishes to relocate permanently but is uncertain if a judgment would allow that to happen may be willing to take the risk of any penalties that follow failure to return after relocation on a temporary basis.
This article was published in New Law Journal in May 2018.
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