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When removal is allowed there are a number of options open to you for registering and enforcing in the new country any contact order made in the UK.  These will depend on the country to which the child has been taken and the details of the treaty it has with the UK.

If removal is allowed

Generally, when the English or Welsh Court allows a leave to remove application it surrenders its authority to the foreign court.  All existing orders then become void.

When making the order to grant leave to remove the Court should also make an order for contact; additionally it can impose certain conditions, which include:

· An Undertaking to return the child if ordered to do so;

· A financial bond to guarantee compliance;

· Obtaining what is termed a ‘mirror order’ in the host jurisdiction.

The UK court will normally be reluctant to order these conditions, especially if the applicant can convince the Court of her good intentions; by granting leave the UK court surrenders its jurisdiction.[1] To enforce contact, you will need to apply to the foreign court; first, you must apply to the UK court for leave to present any Contact Order and the Leave to Remove Order to the foreign court.

BIIR Cases

Under Article 9 of the Brussels II Revised Regulation (BIIR) jurisdiction remains with the original state for three months (though only to modify and not to enforce the order) and then transfers to the new state.  Since it will have been the original jurisdiction which made the order allowing removal, it is difficult to see how this will help you.  It is easy for a party to honour a Contact Order for three months, and then to ignore it thereafter.

The advantage of BIIR is that an order needs only to be registered in the new state to be valid, the case does not need to be heard again.

You must ensure that the contact order made as part of the LTR proceedings is certified under the BIIR arrangements.  The judge should issue the Annex II certificate (Article 41), so make sure he does!  This will enable you to fast-track the application if you need to apply for enforcement in the new state.  Note that the new state can make a new order on application from the relocating parent which will make the existing order obsolete.

It is possible under BIIR for the UK court to order as a condition of the leave to remove that any further disputes over contact are resolved in the UK.  This will obviously save a great deal of time and money if you don’t have to travel abroad to a foreign court and pay for legal representation.

Under Article 12 of BIIR jurisdiction acquired in one co0untry (i.e. the UK) cannot be terminated by the decision of a court in another country; see Re S-R (Jurisdiction: Contact) [2008] 2FLR 1741.  This jurisdiction extends to all matters of Parental Responsibility and confers on the Court power in family proceedings to make an order under s.8 of the Children Act 1989 even where no such application has been made; see AP v TD [2010] EWHC 2040.

Hague Cases

In November 2012 the Hague Convention 1996[2] came into force which allows, under Article 24, the ‘advance recognition’ in the new state of Contact Orders made in the original state.

Where that is not possible you should obtain a mirror order.  This must include things like telephone calls, email, and contact by webcam.  Lawyers in the UK seem very poorly informed on these matters (which is why these cases are often transferred to the High Court), though not all countries will make mirror orders, or apply them if they do.

General comments

In practice these international agreements are unnecessary where the relocating parent is of good faith, and pretty much useless where they are not.

Once a child is established in a new home abroad there is little hope of getting him returned to the UK.  In Sylvester v Austria (App Nos. 36812/97 & 40104/98) [2003] 2 FCR 128, [2003] 2 FLR 210, ECHR) a father took his case to the European Court of Human Rights following the failure by the Austrian courts to enforce an order under the Hague Convention for the return of an abducted child.  After fruitless attempts to enforce the order that the child be returned to the father in the USA, the Austrian Supreme Court took the view that the child’s changed circumstances now meant it was inappropriate to force return.  It noted in particular the impact of the lack of contact with the father.

The ECHR found that the delays were the responsibility of the Austrian Government: it had been at fault in failing to secure expert reports promptly and failing to take steps to locate the mother when she changed her whereabouts in order to defy the return order.  This constituted a breach of Article 8 of the European Convention on Human Rights in respect of the rights of both the father and the child.

Despite this apparent vindication, the child was not returned to the father, and damages were awarded instead.  The case shows why it is so important in such cases to act swiftly and to avoid delay.

Leave to remove is permanent.  Once the resident parent and the child are out of the jurisdiction contact can no longer be enforced without further litigation in the new jurisdiction and is dependent entirely on that parent’s good will and on the non-resident parent’s ability to fund trips to the new country.  Ironically you may find that the family justice system in the new country is better able to order and enforce contact; if it isn’t you will lose your children.

If you think you cannot reasonably prevent the move you will be better advised to allow it and ensure you have shared residence or a Contact Order giving you substantial time with your child in the holidays.

The expense of contact (flights, hotels, etc.) should be deducted from your child support, and you should try to get an order that involves your children’s other parent in sharing these costs.  Many countries have a reciprocal arrangement with the CSA (REMO) so you won’t be able to evade paying entirely.

Allowing removal, and making an effort to remain on good terms with your ex, could work in your favour – you could be set up with a free summer holiday for the foreseeable future!  You may even decide to emigrate yourself.

[1] See, for example, Lord Justice Wilson in R (A Child) [2010] EWCA Civ 1137

[2] The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, http://www.hcch.net/index_en.php?act=conventions.pdf&cid=70

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