"My marriage has broken down. I can’t live here anymore. Can I go ‘home’ with the children?" The short answer to that question is "That depends". As a lawyer I have to answer this question very regularly. I follow that answer with a conversation about the need to have discussions with your partner and the possibility of involving a mediator to help you both reach an agreement about the future of your children. What is right for them is as important as what is right for you.

Of course I also make sure my clients know the law. The basic law is that, if there is a conflict between the parents that requires a court’s involvement, then the consideration of the child’s welfare and any decision about the child’s residence should be dealt with by the courts in the country of the child’s ‘habitual residence’.  For most families that is the country where the child lives.  So if a child is removed from his or her country of habitual residence, without the consent of the other parent, it may lead to legal proceedings for the return of the child.

If the country from which the child has been taken is a member of the Hague Convention on International Child Abduction, then an application can be made by the parent left behind for the urgent return of the child and the Hague Convention provides that the child must be returned.  The members of the Hague Convention include all the countries of Europe and many others, including the USA, Hong Kong, several countries in South America, Australia, New Zealand, South Africa and several countries that were part of the old Soviet Union.

If the Hague convention is invoked then usually the child will have to be returned but there are some circumstances (a very few) when this may not be so.

In the recent case, Sir Mark Potter, the President of the Family Division in England, decided that a child was of sufficient age (13) and maturity that his views had to be taken into account. Sir Mark refused to return a 13 year old boy to his mother in Portugal despite the father having not returned the child to Portugal after a visit.  The circumstances of this case were very specific with strong, provable evidence. 

Generally, provided that the parent left behind acts speedily and makes their application as soon as they can, the Hague Convention, if invoked, will ensure the return of the child to his or her country of habitual residence.  Then the parent who wishes to leave has to take the steps they should have taken initially and apply through the courts of the country of habitual residence for permission to do so.  Obviously by that stage it is hoped that the parents will be able to resolve matters through negotiation or mediation rather than more court proceedings, so that the child is not caused further upset unnecessarily.

So what happens if the child is taken from a Non-Hague Convention country, such as the United Arab Emirates, to England? In Non-Hague Convention cases, the best interests of the child must be considered as a priority and whilst there may be a presumption that it would be better to return a child to his ‘home’ country, there could be circumstances when this is not so. The courts are able to consider a far wider ambit of matters, such as the degree of connection the child has with the country, how long have they spent in each country, the differences of the legal systems and how the courts of the country to which the child might be returned would deal with considerations about the child’s welfare.

So if you are a parent who wants to move away, please talk to your partner and try and resolve things between you. Involve a Mediator to help. Then take legal advice from a specialist family lawyer who will be able to help about the court applications that you can make if you and your partner really cannot agree.

©Candida Purser