By Lucy Greenwood, Partner, iFLG
My Senior Partner, David Hodson, and I were very fortunate to have the opportunity to meet many of you at the FIGT 2016 Conference in Amsterdam. iFLG was delighted to be a sponsor. We met some truly wonderful people who were very insightful and knowledgeable about issues affecting expatriates and TCKs.
David and I were interested to hear about the legal family issues many delegates, their friends, families, and clients.
We felt some of the sad stories we heard had often become unnecessarily complicated. However, we are aware of the long term and sometimes irreversible problems which can be created or worsened by poor or no specialist legal advice about international family law issues.
The phrase “You just never think it is going to happen to you” is one we hear often. People just don’t talk about or even stop to consider any potential legal issues which might affect their relationships or families when they move abroad, or their spouse is moved abroad.
Therefore I thought it might be helpful to provide an example about just one issue concerning the movement of children which most commonly arose during our FIGT conference discussions.
Susan and Costa moved from England to Spain (to be close to his parents) about 2 years ago. They married in England in 2006 and had only lived in England. They have two children, 2 and 6, both born in England. Susan and Costa both had good careers in England (Susan had just returned part-time). She knew the move to Spain would impact her career but Costa had better pay in Spain.
After the move Susan and Costa begin to argue. Susan felt Costa preferred to listen to his parents' opinions than hers. She felt isolated and unhappy. Sadly, Susan and Costa separated about two months ago and Costa moved to his parents' home. Susan longed to return to England with the children where she has a support network and can work, but Costa (and his parents) wanted them to stay in Spain.
Costa and Susan had a very serious row and Costa hit Susan. Sadly, the children witnessed this.
Susan immediately packed up and left Spain with the children on the next flight to England. She believed she was fully justified in going home as she was "fleeing" from Costa's harmful behaviour.
Susan arrived in England and her family embraced her. She enquired about local schools and nurseries and began to feel comfortable and relaxed. She decided to ignore Costa's pestering text messages and calls.
About six weeks after her return, the police arrived at her door. The children’s and Susan's passports were seized immediately. She was served with court proceedings for civil (and possibly criminal) child abduction. She was told to appear at the Family High Court in London in a couple of days’ time and told to seek urgent legal advice.
Susan was bewildered. What did she do wrong? It was Costa that was in the wrong.
She called a local solicitor. Fortunately they said they were not specialist child abduction lawyers and recommended iFLG which is instructed regularly by the English Government for child abduction cases.
Susan was confident there must be some mistake. However, she was told child abduction proceedings are designed only to remedy and return children to their country of habitual residence. Welfare issues are not a criteria (save in the most extreme cases).
The defences to child abduction are very limited and there were none available to Susan. She was advised to return voluntarily rather than by court order. But her specialist lawyers were able to negotiate safeguards/conditions prior to Susan's and the children's return; this included their living arrangements away from Costa, interim financial support and contact arrangements pending her court application in Spain to be able to relocate legally to England with the children.
Susan might try to persuade Costa to agree to the move back to England, particularly if she has been advised by a Spanish lawyer, with whom she was put in touch by iFLG with their network of international contacts, that her chances of relocation via the courts are good.
Mediation can sometimes also be very successful in resolving such issues (even after an abduction). IFLG offer international family law mediation and have a high success rate even for the seemingly most contentious international matters.
If Susan had taken advice earlier, she might have been able to make her difficult situation a little better. The problems Susan faced could have been limited considerably by discussion with the other parent before any initial move abroad. She could even have had a written agreement about what both parents agree should happen if they separate whilst abroad or perhaps agree when they plan to return. Whilst such agreements might not be binding (particularly after time has lapsed) they can provide good evidence of the parents' intentions at the time of a move. Such discussion also alerts the other parent in advance of the potential difficulties. Take your advice immediately on return to England could have prevented the distress of the police arrival and service of papers at home.
Remember, if you separate abroad you cannot return home with the children without the other parent’s consent or a court order. If a relocation is agreed, ask the other parent to confirm their consent in writing (email suffices) as evidence for border agencies and in case the other parent changes his mind
The movement of children across national borders is one of many legal matters to consider prior to or after any move abroad. Others include divorce, separation, related financial claims and jurisdiction/forum issues
Lucy Greenwood is a specialist International family lawyer at The International Family Law Group LLP (www.iflg.uk.com) based in Covent Garden, London. IFLG advises about any legal aspects affecting relationships including pre-nuptial agreements, divorce, finances upon divorce or children issues. They work closely with specialist advisers in England and abroad. If you have any questions, please contact Lucy Greenwood at firstname.lastname@example.org.