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International child custody cases could become further complicated by Brexit

Battles regarding child custody can get really messy when it involves expatriated families and international law. Parents relocating to other countries can add to the complexities and further complicate matters.

Most Western countries will abide by the Hague convention legislation, however there are other countries, further afield, that do not. 

There continues to be a growing issue in cross-jurisdictional divorces, as regards child custody, with the world becoming more entwined in today’s ‘global village society’.   Remember that if your partner has parental responsibility, you need their permission to take the child on holiday abroad.

Both during and after a divorce, if one parent relocates, this can create legal disputes as fights for permission to do this from the court will ensue. Worse still, where one parent decides to abscond with a child or children, without permission from the court, this can build into a bigger case for abduction.

The breakdown of marriage a tends to play a large part in an expatriate’s decision to relocate.  Many people cite the need to have family and friends close to them, at a time when things can fluctuate and prove difficult for them.

For cases initiated in the UK, international rules currently apply under the Hague Convention. Member states work together to provide a swift resolution in child custody cases, with the safety and stability of the child always a priority in any international case.

Member states are bound to recognise in which state the child is in ‘habitual residence’ and they must enforce the laws of that state of habitual residence.  As matters proceed, this could result in the return of a child to that state, as the overriding test is the welfare of each individual child.

Brexit may already be considered an economic and political quagmire but the complexities involved could make things even more difficult, with far reaching consequences in relation to  divorce law and custody of children.  The importance of UK Family Law, EU rules and Brexit are vitally important as without them in place, there could be family law cases in courts in two different countries at the same time.

For example if one parent lives in England while the other lives in Italy, this could lead to enormous confusion, added expense and delayed outcomes.

EU rules decide in which country a divorce and financial order can be obtained, and currently these rules dictate it is the country where the children live. Without these rules couples who cannot agree upon a country of residence, can face lengthy and and very expensive court cases.

Issues such as religion can also create more legal hurdles to contend with as cases develop, as in some countries, religious law overrides all other laws.  The problem occurs because religious rules often clash with the individual assessment of welfare in each case.

If parents share the care of their children, the courts will be far more reluctant to allow one parent to relocate with their child away from the other parent. The court adheres to the principle that the greater the part the secondary carer plays in the child’s life, then the  greater damage there will be to the child if relocated.

There are mediation systems in most countries that will enable parents to use the services to try to reach an amicable agreement about their child’s future. The welfare of the child is the priority in the family courts, so although mediation may not have been chosen initially, the courts will encourage parents to work together to gain accord.

Cross-jurisdictional issues can add more complicated layers to divorce cases.  It’s always best to consider the long term consequences regarding children, before making snap decisions that could have damaging effects.

Anyone going through divorce proceedings who considers that custody and relocation matters may arise should contact one of our specialist solicitors to discuss their individual circumstances in complete confidence. 0121 248 4001



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