We live in a world where people are much more mobile than ever before. It is not only those fleeing persecution and civil wars who may come to the UK. Many arrive because of changes in family circumstances or simply because of the desire for new experiences and opportunities.
Worldwide travel is commonplace for people from all walks of life and an increasing number of relationships in this country are formed between couples one of whom may not have been born here.
Formation of relationships from different backgrounds
The inevitable and understandable consequence of this freedom is that those relationships are often formed between people of different nationalities, origins, faiths and traditions. Some develop and become permanent and households are formed. Commitments are made and children are born.
Many such bi-national relationships are successful. The children have the advantage of experiencing different cultures, gaining a broad view of the world and often being brought up to speak more than one language.
When relationships break down
Some relationships, however, do not survive. Separations occur and the parties have to come to terms with their own feelings and try to repair their lives in the new situation which has developed. Many important decisions have to be made. If one of the parties was not born in this country, they may decide that they do not wish to stay here but instead return to the country of their birth, where they may have family, or move elsewhere, sometimes with a new partner.
Cross border disputes concerning children
When there is a child involved, particularly where the child is young, this situation can often lead to a dispute between the parents. Sometimes, a parent wanting to move to another country may do so without the agreement or knowledge of the other, possibly leaving the other not even knowing where the child has been taken.
If the parents are unable to resolve the problems, they may have to go to court. Sometimes this has to happen quickly for the protection of the children.
In which country should the case be heard?
Where separated parents find themselves living in different countries and a dispute arises between them concerning their child, the question will arise whether the courts in this country have any legal jurisdiction to make orders concerning the child. That issue is decided by the court making a finding as to where the child is “habitually resident”.
The courts in England and Wales will exercise legal jurisdiction over a child, even a child who is currently abroad, if it is decided that the child has “habitual residence” in this country.
Habitual residence is established by the court undertaking a detailed investigation into:
- the circumstances in which the child lived in this country
- his/her life in and connection with this country
- whether or not the child (if old enough) and the parents regarded this country as “home” for the child
- the degree of integration of the child in this country
- the social and family environment of the child and the family
- the length of time the child has lived here, although there can be a change of habitual residence even after a short time.
Even if the court in this country decides that it does not have jurisdiction to deal with the case because the child is not habitually resident here, the law permits the court to take “protective measures” for the benefit of the child until the court in another country deals with the case.