The Family Court makes child arrangements orders and other section 8 orders on a daily basis, which can be enforced by the same courts within England and Wales. However, as migration increases, there is a growing need for these orders to be enforced abroad. In this article, I will address how this can be done within the EU.
The first point to note is that, if you have a Child Arrangements Order from a court in England and Wales, the child cannot be taken abroad for long periods without your written consent. If the child lives with you, you can only take the child abroad for up to 28 days. Otherwise, you need written consent from the other people with parental responsibility, or the court’s permission. If the child does not live with you, you need written consent or the court’s permission in all circumstances.
If someone breaks the rules on taking the child abroad, this is abduction. There are various steps that can be taken if someone has abducted your child, or if you think there is a risk of abduction. The return of children is governed by the Hague Convention. However, even once the court has dealt with any issues of abduction, there may still be cross-jurisdictional issues. These are governed within the EU by the Brussels II Regulation (“BIIR”).
Brussels II Regulation (“BIIR”)
If the court has allowed a child to permanently relocate to another EU country, or if you consent to such relocation, the court will still make contact arrangements. This is done under a Child Arrangements Order; the same way as for other cases, but most probably with contact being less frequent and during the school holidays.
What happens if the other parties do not comply with the contact arrangements? Once the child has lived in another EU country for longer than 3 months, the child becomes habitually resident in the country and that country obtains jurisdiction over the contact arrangements (Article 9, BIIR). This means that you have to go to a foreign court to enforce your right to contact.
Certifying an order
The process of enforcing your order will be made significantly easier if your UK order is certified. A certified order will be “recognised and enforceable” in another EU country as if it were an order of that country (Article 41, BIIR). The key point to remember is to request a certificate when obtaining your UK order (see FPR, r. 31.18). This avoids making another application to the UK court to certify the order before going to the foreign court to enforce it.
Mark accepts instructions in private family and care proceedings, as well as applications for non-molestation orders. He also has experience of financial remedy proceedings, including FDR and final hearings.