It is far more common place today for people to marry spouses from different countries and, for that matter, different continents. It is probably inherent in such relationships that the risk of breakdown is greater due to cultural differences and, all too frequently, a sense of homesickness on the part of one of the spouses, as one has had to abandon his/her homeland to live in the homeland of the other.
When such marriages break up, the problem of making the right decision about the future of the children can be even more acute than usual. There is one aspect that forms an increasing part of the caseload of family lawyers. It is that an English husband has a foreign wife, who has lived here for some years, had children here, educated his children here, and then, for whatever reason, decides to divorce. The wife will frequently want to return to her homeland and to take her children with her. Variations on this theme are that an English wife forms a relationship with a new partner from a foreign country, decides to marry him and wishes to take her children to live with him in his own homeland or a wife with a career gets a job overseas and needs to go there with her children.
She cannot just up sticks and take her children with her without her former husband’s consent. That would constitute child abduction and many countries are now parties to the Hague Convention on Civil Aspects of International Child Abduction. Once a child is abducted from one country to another country that is a party to this convention, that country will, through its central authority, secure the return of the child to England for the child’s welfare to be determined here.
What a wife and mother has to do in these circumstances is apply to the English Court for leave to remove the children to go and live in the country of her choice.
It is not difficult to see how these cases give rise to agonising considerations for all concerned. The children have to be uprooted from a neighbourhood and school to go to another land, which may be far away and with which they may have no great familiarity or very little knowledge. They may have to switch from a total or predominant use of one language in their daily lives to that of another language. Their exposure to their mother’s religion and religious culture may step up to a marked degree.
The mother may not have many friends in this country other than those of her former husband. She is quite likely to have no relations here and none of the consequent back up for looking after her children, e.g. no mother, brother, sisters, cousins etc. She may feel insecure and depressed at the prospect of remaining in England, her adopted home, after a failed marriage.
The father may be faced with the full horror of only having intermittent contact with his children all through their upbringing as the maintenance of that contact may be limited in practical terms to telephone calls, e-mails, videos and such holiday as he obtains from his employment. It may be beyond his means to visit the children in the mother’s country or to fly them to England to stay with him. His parents will face the equally agonising loss of contract with their grandchildren.
How do the Courts deal with these fraught issues? There have been many such cases and the criteria that have to be investigated are now well established.
- The question has to be asked whether the mother’s application is genuine in the sense that it is not motivated by a selfish desire to exclude the father from the child’s life. It also has to be asked whether the mother’s application is realistic, i.e. founded on practical, well researched and investigated proposals. If the mother cannot pass either of these tests, her application will be refused.
- If the mother does pass those tests there has to be a careful appraisal of the father’s opposition. It has to be ascertained whether it is motivated by a genuine concern for the child’s welfare or driven by an ulterior motive? The Court has to ask what the extent of the detriment to him and his future relationship with the child will be if the application is granted? Against that has to be balanced the extent to which that would be offset by the extension of the child’s relationship with the maternal family and homeland?
- The Court has to ask itself what would be the impact on the mother, either as a single parent or as a new wife, of the refusal of her realistic proposal.
- The outcome of that investigation then has to be looked at in the light of the child’s welfare, paying particular regard to:
- the wishes and feelings of the child in the light of his or her age and understanding;
- his or her physical, emotional and educational needs;
- the effect on him or her of any change in his or her circumstances;
- his or her age, sex, background and any characteristics which the Court thinks relevant;
- any harm he or she has suffered or is at risk of suffering;
- how capable each of his parents and any other person relevant to the issue is of meeting his needs;
- the powers the Court can use in making it Order.
The Courts have consistently attached importance to the emotional and psychological well being of the primary carer i.e. almost invariably the mother.
If a Solicitor is advising a mother making such an application, he will tell her she should produce a well researched case that would satisfy a judge, as to housing and schooling and also demonstrate that she wishes to do everything possible to maintain the children’s contact with their father. For example, should such an application come sometime after she and the father have split up, failure by her during that period to honour contact arrangements made with the father will make her task all the more difficult as the Court will be concerned that she will use the barrier of distance to shut the father further out of the child’s life. It will obviously help the mother if the children have maintained a degree of contact with her homeland, by visiting it often and being brought up in part with an awareness of its cultural and religious traditions. The mother must also demonstrate a willingness to keep the children in touch with the father’s English cultural and religious traditions.
The father, who is faced with a well researched, properly prepared case by a mother should be warned that the likelihood is that the Court will let the mother and children go. If at all possible and affordable, he should acquaint himself with the children’s new homeland and schooling and develop a relationship with their schoolmasters. The best he can hope for is good periods of contact during school holidays, either in this country or abroad as well as regular written and telephone contact. It obviously helps if members of his family can travel to see the children in their new home. He will gain through a firm, constructive approach. If he is fortunate, the maintenance of that link will encourage the children to come back to England for a part of their adult life. The potential pain to him of such a consequence of the break up of his marriage can not be under estimated but can be alleviated to some extent by the ease of modern air travel, where his means permit it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.