Divorce and Foreign Residence: Children

When a marriage breaks up, it is usual for the couple to separate physically as well as legally and in some cases the physical separation can be considerable. With the increase in international travel and residence abroad, marriages between persons of different nationalities are becoming increasingly common.

When a couple divorces and one of them wishes to return to their country of origin, this can cause particular problems where there are children. Strictly, it is a criminal offence for a divorced or separated person to take a child under the age of 16 abroad contrary to the wishes of their spouse, unless they have a residence order in respect of the child. This is taken very seriously by the courts. In a recent case a man had his daughter removed to the Middle East and claimed he then did not know her whereabouts, thus failing to comply with an order of the court to return the child to the UK. The court imposed a custodial sentence and then reimposed when it had been served, for contempt of court.

Recently, a number of cases have tested the limits of the previously established rule as regards taking children abroad, which was that permission should only be denied when there was a strong reason for so doing. This rule appears to be less strictly applied than before.

When a parent wishes to relocate children within the UK, problems can arise if the other parent objects to the move. In a recent case, an application by a mother to move her children to the Orkney Islands from the North East was objected to by her ex-husband. Evidence was given of the mixed views of the proposed move held by the children, who were between nine and 14 years old.

The Court of Appeal supported the family court’s ruling that the move should not proceed.

In another case the principle was confirmed that where the question of in which country the children of the marriage should be raised is concerned, the needs of each child must be considered separately: the children are not to be considered ‘as one unit’.

Regrettably, there are no hard and fast rules about what the courts will or will not think is acceptable in the event that a move (especially one to a quite different locality) is proposed, with each case being decided on its own facts.

 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.