Child Relocation 2023

Global Overview of Child Relocation in 2023

When a marriage or other form of intimate relationship breaks down, one or both parties may want to make a change in their lives. For some, this may mean returning to their home country, starting afresh in a new country, pursuing a new relationship, or seeking out a particular employment opportunity. This desire for change often leads to one parent wishing to relocate – either within a country or between countries – and is arguably becoming an increasingly common issue, owing to the rise of cross-cultural relationships and globalisation. Whatever the reasons, such a move directly impacts upon the children of divorcing or separated couples and presents the question: how can such a move be made possible?

Internal and international relocation

Among the multitude of reasons why people choose to move, returning “home” to the country they came from and forging a new relationship with someone from another country are particularly common. In deciding between countries, a compromise must be reached about where to live. Even once a decision is reached, it might then become necessary to relocate for work – a factor that still disproportionately affects men.

In international families, one party will have to live in the country of the other. When they split up, the decoupling process works in reverse and this potentially makes the issue of relocating children more acute. Obviously, these issues do not just affect the nuclear family – they also apply to blended families and in the case of adopted children, where different considerations may apply from country to country.

Deciding to relocate with a child following the end of a relationship can be difficult in many ways and the laws relating to relocation will vary between jurisdictions. In many countries, such as England and Wales, a parent cannot relocate with a child (whether internally or internationally) unless the other parent consents or there is a court order permitting the relocation. In other countries, such as the USA, there are different legal jurisdictions within the same country. The laws in some states presume that a custodial parent has the right to change the residence of a child unless the other parent can provide evidence to convince the court that such a move would be detrimental to the child, whereas other states first require consent or a court order. This can make it very difficult for one party to leave the state and move elsewhere in the country.

It is self-evident that relocation cases are regarded as some of the most contentious and challenging to come before the family courts. Notwithstanding the complexities that arise, the number of such cases continues to increase for the reasons identified earlier. Given that the process can be slow and sometimes cumbersome in some countries, timing is very important so as to avoid unnecessary delays.

Although the key considerations typically remain the same, different jurisdictions vary in how they balance the right of the primary carer (often the mother) to go to a place where she would prefer to be against the change to the child’s relationship with their father. In trying to achieve the right balance between the two, the law may be a blunt instrument – given that the factual narrative of each relocation case is, by definition, unique and distinctly human. It can also be a costly exercise.

Choosing to use the courts to deal with issues relating to children can be a bit of a sledgehammer and an expensive one, too – requiring people to spend their hard-earned savings on trying to ensure that they will see their child again or potentially prevent the child from moving to another country. The opportunity to instruct good legal counsel will depend on the availability of legal aid in different countries. In some countries, these issues can be resolved without the need to involve the court – for example, through mediation or arbitration.

The key consideration in such cases is often the welfare of the child. The weight placed on such issues and evaluating what is in the child’s best interests will depend on the jurisdiction. In England and Wales, the courts must weigh up various factors such as:

• the child’s wishes and feelings;
• the child’s sex and background;
• the child’s physical, emotional and educational needs; and
• the likely effect on the child of a change in circumstances.

This list is non-exhaustive.

The age of the child or children will often be a key consideration in jurisdictions that take account of their wishes and feelings. The impact on the child is likely to increase with age – for example, a 15-year-old is typically more able than a five-year-old to articulate and express their desires about their relationships with their parents. Again, the weight of that evidence can be apportioned quite differently in each jurisdiction and the degree to which that is factored into a court’s decision-making process varies. Where different children express strongly different wishes, this might result in families/siblings being split up.

There are other factors external to the child that may be relevant as well, such as the potential harm that could be caused to the primary carer of a child who is refused permission to relocate. It is widely accepted that it is important for a child to have a relationship with their non-resident parent; however, it is similarly important for the child to have a principal carer who is psychologically stable and emotionally well.

Practical considerations (eg, the size of a country and the distance between locations) can also be significant. Moving from one side of Australia to the other, for example, could have a distinct impact on a child. Travelling times can also be material. It may well be quicker and easier for one person to travel from London to visit another in Paris than it is to go to Northumberland. This leads to the question: is it more damaging to a child to move to Northumberland than it is to go to an easily accessible part of a foreign country such as France?

Post-Brexit, the UK is no longer subject to EU regulations. Potential issues might therefore arise in relation to an order previously made by an EU country in terms of enforceability. Equally, the removal of freedom of movement now makes it harder for people (particularly EU citizens) to spend significant time in the UK. Immigration has also become a more challenging issue in the UK, which makes some practicalities more difficult, whereas movement within the EU remains straightforward.

Child abduction

Where permission to relocate is not obtained (whether through the court or otherwise), the relocation of a child can result in child abduction. This is a criminal offence in many countries and the child’s return will often be governed by the terms of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”), a multilateral treaty relating to international child abduction and supplemented by the Hague Convention on parental responsibility and protection of children (“HCCH 1996”). As of 2022, there were 103 parties to the 1980 Hague Convention, including most Western countries and many others that have internationally recognised legal systems. Some countries, including India, Bangladesh and the UAE, are not signatories to the 1980 Hague Convention. Certain countries that are signatories (eg, Russia, Turkey and Mexico) may not always demonstrate compliance. This guide aims to deliver some understanding of the broad principles that apply in such cases. In reality, the application of the 1980 Hague Convention within countries that are signatories will differ.

The 1980 Hague Convention protects children from the harmful effects of abduction (ie, wrongful removal and retention across international boundaries) by a parent. It encourages the prompt return of abducted children to their country of habitual residence and provides a procedure to bring about their return.

In essence, the 1980 Hague Convention operates on the principle that if there is a relocation without the consent of both parties, the child should be returned to the country from which they were taken and any decisions about the child’s future residence and living arrangements should then be taken in that country. The existence of the 1980 Hague Convention demonstrates that the international community recognises the scale of the problem and the pressing need for there to be a mechanism for returning children.

Parents are best advised to act quickly to prevent an abduction if they believe that their child may be at risk – for example, by obtaining an order preventing removal where available. Once a child has been wrongfully removed, the legal mechanisms for forcing a return can be protracted and require applications in various jurisdictions. It is better to act pre-emptively to avoid this difficult, lengthy and expensive process.

Relocation applications are only going to become more frequent as the world gets smaller and smaller and this will undoubtedly continue to be an issue with which all countries are going to have to grapple. And many parents, too.