There is undoubtedly an increase in international families and with this comes an increase in children being the subject of Court proceedings in more than one country.
If Court proceedings relating to children follow a relationship breakdown, then it is likely that custody and access orders will be made. A lot of countries around the world still refer to orders setting out who a child is to live with and how much time they are to spend with the other parent as custody and access orders. In England, these types of orders are now called Child Arrangement Orders.
If following custody and access orders being made, there is a subsequent lawful permanent relocation abroad of the children with one parent, the status of the existing orders will need to be considered. There are some international laws that allow foreign orders to be registered, recognised and enforced in England.
The most straightforward situation would be one where all orders, including the order giving permission for one parent to relocate with the children abroad, are made at the same time. This is because the access order will then be designed to take into account relevant practicalities such as international travel and the logistics of contact taking place when the children settle in a different country to their other parent. If the country in which the order was made is a signatory to certain international laws (the 1996 Child Protection Hague Convention or Brussels II revised), then it will be possible to have the order registered/recognised in England and therefore rely on it should either parent need to if there is any deviation of the foreign order.
This ability to have foreign orders recognised/registered and enforced is clearly useful to parents when they have already been through legal proceedings once as this allows them to save the costs of having to go through full legal proceedings again for the same order in England.
It is also possible to recognise other types of foreign children orders in England and we consider all available options in each case.
If however, there is no order allowing access or the order is inadequate as it does not deal with international access, and a lawful relocation takes place, then there are two primary routes for a parent to seek an appropriate access order. The first depends on the country in which the parent seeking the access order lives in as if it is a signatory to the 1980 Child Abduction Hague Convention then the parent can rely on article 21 of this Convention to seek access. There is legal aid available for this type of application subject to meeting the criteria. Otherwise, the second route to gain an access order is simply to apply under English law under the Children Act 1989.
If in contrast to the above, a child has been unlawfully taken abroad with the necessary permission then this will be classed as child abduction and any pre-existing orders from the original country may then be registered, recognised and enforced in England with the aim that this will result in the children being returned home. Otherwise, there are international child abduction laws that can be used to have abducted children returned even when no pre-existing orders are in place, please see our child abduction section for more information on this.
The legal procedure that will be relevant to have a foreign order recognised in England will vary and depend on a number of factors that we fully advise all of our clients on at the start of their cases.