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Sports stars and child welfare

1 May 2013

As Sergio Aguero twirled his shirt above his head in celebration following his title-clinching 94th minute strike in the final game of last year’s Premiership season, few would have guessed the personal difficulties the Manchester City star was facing. Shortly after his crowning glory, it was announced that he would be separating from his wife of four years, Giannina, the daughter of Diego Maradona, and that she would be moving back to their native Buenos Aires with their young son.

In the sports marketplace, where international superstars move freely amongst clubs scattered across the globe, this situation is becoming increasingly common. Carlos Tevez, Aguero’s Manchester City team mate, has spoken about the difficulties he has faced with his family returning to Argentina, and it is reported that the Newcastle captain Fabricio Coloccini has been experiencing personal issues as a result of living away from his family.

Parental responsibility

Our sporting heroes are no different to us when it comes to a relationship breakdown and there are few more traumatic situations for any parent than enforced separation from his or her child. In order to move to another country with a child, the relocating parent must have the agreement of all those who in law have parental responsibility (“PR”) for that child. Ordinarily, this will only be the other parent who will be left behind.

Married fathers automatically have PR for their children under English law, whilst unmarried fathers will do so if they are named on the child’s birth certificate (provided the child was born in England and registered on an English birth certificate after 1 December 2003). For other unmarried fathers, including fathers of children born in other countries, such as international footballers who have brought their families to this country, they must acquire PR through an agreement with the mother or Court Order.

If the parent who will be left behind does not agree to the child relocating, it will be important to first ensure that he has PR (or applies for it without delay) and can raise a reasonable objection. The Court must then make a decision as to whether or not to allow the child to leave the country permanently.

Child's welfare

Each case will be determined on the particular facts; the Court must consider how the child will be cared for following the move, choice of home and schools, the impact a refusal of the application will have on the parent who is left behind and the opportunities for the child for contact with that parent.

In planning for the move, a parent should research where the child is going to live, where they will go to school and what support network would be in place for both themselves and the child when they get there. A credible and well-thought out plan for the move has a better chance of being granted permission by the Court.

Often parents moving back home, such as Giannina Aguero, have a greater chance of being allowed to leave with their children because they can demonstrate that their family will be on hand to provide them with any necessary support, in addition to the argument that it was only ever intended that their stay in England would be temporary.

Time v's money

It is essential that proposals are considered and explained to the Court for the parent left behind to have contact with their child. Based on their well publicised salaries, an international footballer is likely to have the necessary resources to visit the child on a regular basis, even if that child lives some considerable distance away. On the other hand, training and match schedules may make this difficult in practice.

Provision could be made in a pre or post nuptial agreement that if the couple move abroad and subsequently separate, one party is entitled to return home with any child of the family. Such agreements may be evidentially useful in supporting an application for permission to move abroad, but it is important to remember that they will not be binding on the English Court, as English law says that the welfare of the child is the paramount concern and recognises that this may change over time as the child grows and develops, independently of what the parents have agreed before. The most important consideration for both parents must be what is best for the child. The impact of separation and divorce on children can be devastating and highly destructive. The differences and animosity between the adults must be put to one side to ensure that the child has the best possible opportunity for a calm and happy childhood.