It is a time of year when peoples’ thoughts turn to holidays. Apart from holidays meaning trips abroad, it also means that children that live abroad, have the opportunity during the school holidays to spend time with their parent who lives in England (“English” parent).
During such stays, the English parent may hear concerns or worries from his or her child which make the English parent think that it is more appropriate for the child to live with him or her. The English parent may think that it would be better if the child lives with him or her permanently.
However, please be aware of the following. First of all the English and European Courts operate on the basis that any disputes about children should be resolved in their home country and not in the country where the child is being retained. If a child is wrongfully retained, the parent who is retaining the child is at significant risk of being arrested and/or charged with a child abduction offence.
There are defences that the English parent can try and use to stop a child being returned to the child’s home country. However, these defences are strictly and narrowly interpreted and the English parent has all the hard work of trying to prove that one or more of these defences apply.
In broad terms, the defences are…
- The child objects – the English parent has to show that the child objects to being returned; and the child retained is of an age and degree of maturity at which it is appropriate to take account of his or her views. Once these two requirements are met, then the Court has a discretion about whether or not to order a return.
- Consent/acquiescence – the English parent is able to establish that the parent living abroad has consented to or subsequently acquiesced in the removal or retention of the child. However, consent to the removal of the child has to be clear and unequivocal. The Courts are slow to infer intention to acquiesce from attempts by the parent living abroad to effect a reconciliation or agree a voluntary return of the abducted child.
- There is a grave risk that the child’s return will expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Court have a discretion not to order a return, if the English parent is able to establish this exception. However, “grave” means grave. In relation to physical or psychological harm the Courts consider that every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. However, the Court will not allow physical or psychological abuse and neglect of the child itself; and/or seeing and hearing the physical or psychological abuse of his or her own parent.
At the end of the day it is in the Court’s discretion. Behind the exercise of that discretion public policy is that English parents should not be encouraged to retain children, unless there is very good reason, (who normally live abroad). A retention, which does not come within one or more of the above exceptions, means that a child will be returned as quickly as possible. The child then suffers considerable disruption, having probably because of the length of Court proceedings, spent some time at an English school. The child then has to readjust to schooling in the child’s home country.
As can be seen from the above, this is a very complex area of the law and is normally dealt with in the High Court in London.