Overview of International Child Law

International Child Law encompasses a wide range of cross-border children disputes and legal issues. These issues can often be highly complex and involve both an understanding of UK law and that of the relevant jurisdiction in question. It is therefore vital that specialist legal advice is sought to ensure the proper protection of you and your family in these scenarios.

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Taking a child abroad and child abduction

The breakdown of a relationship will often result in court order known as a child arrangement order determining the custody and contact arrangements between each parent and the child. A parent named in a child arrangement order as the person with whom the child lives can take the child abroad for a period of less than one month without the consent the other parent with parental responsibility. If the child arrangement order only names the parent as a person with whom the child spends time with, then the permission of the other parent of the court is required for them to travel outside of the UK.

If you believe your child is being abducted, or you are being accused of such, it is important that legal advice is sought and swift action is taken.

The legal advice you seek on these matters will ultimately depend on the law in the relevant country and, further, whether or not they are signatory to The Hague Convention on the Civil Aspects of International Children Abduction 1980. Countries that have ratified this Convention are able to cooperate to ensure return of abducted child to their habitual residence where the courts will be able to determine the child’s future. If the country in question is not a signatory, however, different legal procedures will apply.

In the UK, there exist certain orders you can apply for where you believe your child may be at risk of abduction, including:

• Prohibited Steps Order, whereby the Courts can prevent a parent from taking a specific action, such as removing a child from the country
• Specific Issue Order, where the courts can allow for a specific course of action, such as the hand-over of a passport.

Relocation

If there is a child arrangement order in place, then a parent cannot remove their child from the jurisdiction of England and Wales without either gaining the consent of every person with parental responsibility or the leave of court.

If there is not a child arrangement order in place, then it is still recommended that the written agreement is obtained from everyone with child responsibility as well as the other parents (even if they don’t have parental responsibility) since the lack of consent will be regarded as child abduction.

If you wish to move abroad with your child it is therefore vitally important that you first seek agreement with the other parent, or otherwise seek the courts’ permission. It must be stressed that removal of the child to another area of the UK would not be regarded as child

It is not uncommon, however, for relocation arrangements to conjure opposition from the other parent, especially where this significantly reduces the level of contact they have with the child going forward. As such, obtaining the consent of the other parent may well be impossible in these scenarios, rendering it vital for the courts to step in. In these scenarios, the paramount consideration for the court is the welfare of the child. The court can grant the following orders in these situations:

• Leave to remove if a child arrangements order is in place
• A specific issue order or a child arrangements order with permission if one is not already in place

The relocating parents much attend a mediation information and assessment meeting (MIAM) with a mediator before applying for these orders.

The status and enforceability of child arrangement orders may be in jeopardy where a child is lawfully relocated abroad with one parent. As such, it may become necessary to have that order recognised and registered in the relevant country to enable its continued enforcement.

If the country in question is a signatory to the 1996 Hague Convention, any court order made in the UK will be automatically recognised and made enforceable. If this is not the case, however, you should seek legal advice in the deciding country so that a mirror order of the equivalent effect can be obtained.

INTERNATIONAL SURROGACY

Where parents choose to make surrogacy arrangements overseas, a number of important issues are likely to be relevant. Crucially, a parental order will be required to recognise the individuals as legal parents of the child within the UK. On top of this, however, arrangements will have to be sought to legally bring the child into the UK and to determines the child’s nationality. Before entering into foreign surrogacy arrangements, it is therefore imperative to seek proper legal advice on how to deal with these issues so that appropriate protection is attained.

OVERSEAS ADOPTION

Overseas adoption, akin to international surrogacy, can raise complex issues in relation to family and immigration law. Following the correct procedure in these cases is therefore vital, not only in ensuring the child’s proper entry into the UK and their acquisition of British nationality, but also to protect against potential committal of a criminal offence.

Typically, it will be necessary for some sort of adoption order to be sought in either the country from which you are adopting, the UK, or both. This will depend on whether the country in question is a signatory to The Hague Convention in respect of intercountry adoption. If so, then an adoption order in either the UK or the other country has the benefit of mutual recognition (as well as recognition in all other Hague Convention countries).

Alternatively, that country may be on the ‘designated list’ for the purposes of The Adoption (Recognition of Overseas Adoptions) Order 2013, in which case England, Wales and Northern Ireland will also automatically recognise any adoptions made in those countries.

If you are adopting from a country which is not signatory to The Hague Convention or otherwise on the designated list, then adopting in both countries may be necessary and you will need to carefully consider immigration rules relating to bringing the child into the UK.