In this article Cara Nuttall looks at potential legal requirements when international parents separate.
There has been a lot of press coverage recently about Shakira bidding an ‘emotional’ farewell to Spain, as she left the country with her two children as part of a relocation to the US. Reports suggest the relocation arises in large measure from the well-publicised split from her long-term partner, Gerard Pique, who plays football in Barcelona.
When an international couple separate, it is by no means unusual for one (or both) to look to return ‘home’ to the support of family or friends, whether immediately, or once the dust has settled and as part of their long- term plan for a new future.
It can often come as a surprise to parents looking to do this that they are not automatically entitled, as a right, to return to their home country with their children, even if the children were born there and/or are nationals of that country.
In many countries, the consent of both parents will be required, and in default of such agreement, the permission of the court.
Moving without that lawful permission is often classed as abduction and can have both civil and criminal consequences. In particular, it is often open to the left behind parent to seek urgent orders requiring the immediate return of the children to the country in which they had been living.
These proceedings, which often, though not always, take place under the Hague Convention, are usually dealt with on a summary basis and focus on whether or not the children were lawfully removed, rather than what is in their long-term interests.
The question of where and with whom the children should live long term, and what is best for them, tends to be considered further down the line and often as part of a separate process.
Whilst in some countries a finding of ‘abduction’ whether deliberate or accidental does not automatically impact on any subsequent application to lawfully remove the children to another country to live, sometimes it can have serious adverse consequences and could mean permission is refused.
As Shakira’s heartfelt posts indicate, it is perfectly possible for parents living internationally to agree to relocations taking place.
Sometimes this can be done informally without the need for lawyers, other times whilst agreed, it will still require the arrangements to be confirmed in writing or even within a court order, to give everyone security.
If you are a parent considering an international move, for whatever reason, it is crucial to understand what permission you need, and to obtain it, in order to avoid potentially complex and costly abduction proceedings if the worst happens.
It is also important to understand what paperwork may be required on exit/entrance to avoid unnecessary complications.
