What happens when international parents cannot agree where a child should live?
Families are increasingly international, which can add an extra layer of complexity if relationships breakdown. What happens when parents who have connections with more than one country cannot agree the arrangements for the children? You would normally apply to the court in the country where the child is habitually resident. However, sometimes it is not clear where this is and there are cases where two or even more courts become involved.
How to proceed best will always depend on the specific case and you should always take specialist legal advice in these situations. However, the following is an example of a recently reported decision, which helps to shed some light on the English court’s approach.
Parents could not agree arrangements for their three year old son. The mother applied to the English court and the Father had applied to the Indian Court. The English court accepted the mother’s argument that the son was only in India after a family visit, which was intended to be temporary, but during which the father had deliberately taken the mother and child’s passports, so they had to stay over there. The mother eventually had to return to England without her son, who was left being cared for in India by his maternal grandparents. She applied to the court here for her son to be returned to England.
The English judge agreed the child’s home country was England, and therefore the English court should make the decisions about the child. He respected the Indian courts and the decisions they had already made following the father’s application, including that the father was primary carer. However, the Indian courts had not been told exactly what had happened and they did not have all of the information required to decide the child’s longer term future.
However, rather than just wading in, the judge paused the English proceedings and invited the mother to apply to the Indian courts to put on hold the proceedings over there, so the English court could determine the longer term. He hoped that the two courts could work together in this way and achieve an outcome that was in the child’s best interests.
If the Indian court would not co-operate for any reason, the judge made clear that he may make some orders which would allow the mother to bring the child back to England and stop the father from pursuing his applications in India.
It is always going to be better for children if parents make a well-planned and considered application for a change of any child’s living arrangements in the country in which a child lives before any travel takes place.
Under English, it is a criminal offence to take a child out of England or Wales without the other parent’s consent, or otherwise the order of the court. Inevitably doing things in the wrong order leads to unnecessary stress, cost and a loss of time since internationally there is a commitment to returning children to their home country or state so that the home court is able to make decisions most appropriate to a child’s future and that are in their best interests. For more information, see our international page:.