US Citizens moving to the UK part 8: Key considerations in relation to child arrangements

Key takeaways

• Relocating as a family from the US to the UK may have significant legal consequences where there are children.
• The US and the UK are signatories of the Hague Convention on child abduction which provides for the court-ordered return of a child wrongfully removed from or retained in another country in breach of another’s ‘rights of custody’. Consent (or a permissive court order) is required prior to any initial move to the UK or any subsequent return to the US.
• Once a child habitually resident in England, the English court will have jurisdiction to make orders in respect of such a child if the parties are unable to agree; for example about with which parent a child lives or the time spent with each parent.
• In making such decisions, the child’s welfare will be the court’s paramount consideration and will inform the outcome.

Important notes:

• This article addresses the position under English law only and does not constitute advice on the law in any US state.
• Families relocating from the US should also take state-specific advice prior to any move from the US and about any continuing US jurisdiction in relation to the children following a move.
• The article assumes both parents (and no others) have parental responsibility/custody rights for the child.

This article addresses three scenarios that may raise child law issues for US families relocating to England with children: (1) the initial move from the US; (2) a potential return to the US by one parent with the child(ren) if the relationship breaks down; and (3) arrangements for the child if the relationship breaks down and both parents remain in England

1) Children moving from the US to the UK…

The decision about which country a child lives in is clearly an extremely significant one and it is important that no change in habitual residence is made without obtaining agreement first from every requisite party. 

Usually parental consent is all that is required. A move to England from the US without that consent (or a permissive US court order) may constitute an international child abduction and result in an order for summary return.

2) …and back again?

The converse is also true. If a child becomes settled and habitually resident in England, consent (or in default a court order) will also be required before a subsequent move of home country, including a return to the US. This could become an issue in circumstances where, for example, a family relocates from the US to the UK, but the relationship subsequently breaks down and one parent wishes to return to the US with the child. 

There is no automatic parental right to return with the child in the absence of consent or a court order authorising the child’s removal from the English jurisdiction. The same principle applies whether it be for a short trip (save in limited cases), a longer holiday or on a permanent basis, and removing the child without that consent or court order could be a criminal offence.

In deciding any question relating to a child, including a potential return to live in the US, the court has the child’s welfare as the paramount consideration and will decide according to the child’s best interests, weighing up the arguments for and against the proposed relocation.  Factors for consideration when applying the welfare principle include the child's own wishes and feelings (considered in the light of their age and understanding), their physical, emotional and educational needs, the likely impact of any changes, the child's background, any risk of harm, and how capable each parent is of meeting the child's needs. In practice, this cocktail of issues can be trickier to determine than to state.

More specifically in the context of an application to return to the US, the court will want to understand the child’s views (depending on their age), the impact of the move on the child's relationship with the left behind parent, the motivation of the parent seeking to move and whether the application is genuine rather than designed to exclude the other parent from the child’s life, and the effect on the child of either refusing or granting permission. Providing a clear and reasonable framework for how to maintain the child’s relationship with the other parent is a fundamental part of any application.

3) What if both parents remain in England? Domestic child arrangements

The discussion above concerns the position where, after relocating to England, one parent wishes to return to the US with a child. But what happens if both parents wish to remain in England with the child? Even where the whole family wishes to remain in England following a separation, significant questions may arise about time the child spends with each parent and how important decisions about their upbringing are made.

The plain hope is that parents are able to agree such questions between themselves. If so, there is no need for the English court to become involved. However, where parents cannot agree, the court can be asked to decide; and again it will do so according to what is in the child’s best interests, applying the same welfare checklist described above – by considering the child’s wishes and feelings, their needs, the likely impact of any change, and the capability of each parent to meet those needs amongst other factors. 

In terms of important decisions about a child's upbringing, such as relating to education, medical treatment, religion, or any travel outside England, the agreement of both parents is required or, in the absence of agreement, an order of the court. Day-to-day decisions of less import can be taken by whichever parent the child is with at the time.

As to the time spent with each parent, there is no presumption of an equal division of time between parents. The focus is on what works best for the child: what routine provides stability, what meets their needs, and what each parent can practically offer. Even such day to day matters as the ability to deal efficiently with school runs, homework, medical appointments and day-to-day care can be relevant. A child may 'live with' one or both parents on a specified division of time. The court's concern is always the quality of the child's experience rather than a mathematical division of the week. Above all, any arrangements have to be safe and designed to provide a happy, supported, secure framework for the child. If agreement cannot be reached about when and in what circumstances the child sees the parent with whom he does not live, orders can be made about such arrangements.

Reflections

Decisions relating to children will be some of the most emotive aspects of relationship breakdown, perhaps heightened in circumstances where the family is living far from their country of origin and associated support network.

Whereas a family looking to move from the US to the UK will almost certainly consider issues of taxation, accommodation, education and quality of life very carefully before making a transatlantic move, the potential legal consequences for the children of future relationship breakdown, often fail to make the list of research topics. Without wishing to adopt the role of a patronising or overly cynical lawyer, individuals contemplating an international move of home would be well advised to add such considerations to the list and to take early specialist legal advice on both sides of the Atlantic before firming up on plans to make the move, and again in the event of subsequent relationship breakdown.