Oceans Apart

Cheryl and Liam Payne announced their separation over the weekend after two and a half years together.  The couple of course have a son, Bear, born in March of last year.  As the couple ask for privacy as they try to navigate their way together through parenting Bear, it does raise the interesting question of practical arrangements for a couple whose living arrangements involve an international element.

Whilst celebrities like Cheryl and Liam undoubtedly live a more glamorous existence than most, they are not alone in facing possible geographical challenges following a separation.

If one party is essentially living and working an ocean away from their children, then for separated couples that can present difficulties with that parent’s contact.  Whereas before, they would simply have come home between times and resumed family life, post separation there is often not a home to come back to.

What then if the parent working abroad decides to make that their more permanent home – the question can then arise whether any children should, or could, make a home in each jurisdiction, with the overriding practical concern often being that of education.  Even if time could be divided such that the children then spent term-time with one parent, and holidays with the other, there must in my view be a question mark over whether it is in the best interests of a child to only ever have the arguably more tedious term-time contact with one parent.

So if two parents separate whilst already living in (or contemplating living in) different parts of the world; what are the legal issues involved?

The first is the jurisdiction which will determine the care arrangements for the children.  In broad terms, that will be the jurisdiction of a child’s habitual residence; in other words the place where a child principally lives.  There are certain circumstances where a jurisdiction that is not the child’s home jurisdiction can make decisions, but that is uncommon.

A parent cannot remove a child from their country of habitual residence without the other parent’s consent, although it is worth noting that for these purposes the constituent nations within the UK are one country – unless there is an order of the Court to the contrary, there is no legal barrier to a parent taking a child from Scotland to England.

That exception aside, removing a child without consent is child abduction and pursuant to various international conventions, including the Hague Convention on Civil Aspects of International Child Abduction, the jurisdiction to which the child has been removed will in most cases be obligated to return the child.  There are some jurisdictions however where there is no reciprocal convention with the UK for the return of a child who has been removed without the other parent’s consent, and if you and your partner separate in circumstances where your partner wishes to take the child, even briefly, to a jurisdiction which is not a signatory to an international convention, then this is something which requires to be approached with a great deal of care.

Child abduction is of course an extreme, but it is by no means unusual post separation for one parent to want to move outwith the child’s home jurisdiction with the child.  It may be because the jurisdiction where the child lives is not where the parent is from, and they wish to return “home” to be closer to friends and family.  It may be because a new partner is relocating abroad, and the parent concerned wishes to accompany that partner with their child.

If one parent is looking to permanently remove a child from a jurisdiction then certainly, insofar as Scots Law is concerned, the two principal considerations for the Court will be what is in the best interests of the child, and whether it is better for an order to be made than for no order to be made at all.  Best interests will always be paramount, and certainly any parent wishing to relocate with a child would be advised to have a clear plan in place as to what that child’s life will look like in the new jurisdiction including where they would live and go to school, and critically how contact with the parent (and indeed any extended family) left behind will be maintained.

Care arrangements for children after separation can be difficult for many families whatever their circumstances, but where there is an international factor this inevitably adds a whole new element of complexity.  One difference of course where parents have resources at their disposal such as Cheryl and Liam is that it can allow a child to travel readily to see either parent irrespective of where they are.  Even in those circumstances however, parents will still be left dealing with the changes that separation often brings to the practicalities of their relationship with their children.  In our experience, early communication with your ex-partner where possible and good legal advice is paramount in minimising the disruption for all concerned.

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.