GlobalARRK, a UK registered charity, has been supporting ‘stuck parents’ around the world for the last 6 years. Visa restrictions, unemployment, poverty, language barriers and loneliness can make life impossible for the stuck parent and child. The parent often has to make the choice to either return to their home country without their child or to take their child illegally. We hope that solutions can be agreed on, so that it is possible for parents to make better, less traumatic choices and that fewer children end up losing their primary carer.
We would like to invite all interested parties – lawyers, judges, politicians and parents to come together and reflect on the practical workings of this law and to come up with solutions. We have selected some key areas of concern.
Three key Issues surrounding Habitual Residence
1. How can we make sure that the Habitual Residence is easy for all to understand, makes common sense and is used, as intended, to best define the place where the child feels settled?
According to our survey around 90% of parents did not realise that when their children moved abroad they would be considered ‘habitually resident’ (HR) in the new country almost immediately, that they could not return home unless both parents give permission. To many parents the immediate or rapid shift of HR is counter-intuitive and does not make ‘common sense’ that, for example, a German child of 6 can move to Australia for 3 weeks and not be allowed to return to Germany with their primary carer. The child would surely still consider themselves settled in Germany not Australia. In addition, for young children, HR is an abstract idea – it is questionable to what extent babies and small children comprehend which country they are in, let alone which they are ‘habitually resident’ in. What surely matters to them is being in a ‘safe’ place, close to their primary carer.
Habitual residence should be the place which the child considers ‘home’ and is settled in. However, that this takes time: the child needs time to learn the language, adjust to the new country and its culture. This surely cannot happen overnight! Certainly, if the timeframe of change-over were longer than the current 0-6 months (country-dependant) than it would make more ‘common sense’ to ordinary people and would be a fairer assessment of where ‘home’ is for the child.
In the UK case of Mercredi vs Chaffe, 2010 it states there is a need for a certain duration of time in order to be ‘habitually resident’ however there is no set timescale:
In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration.
Why not define a minimum duration, or even have guidance based on a realistic and meaningful timescale which could then be weighed up by the judge?
2. How can we define Habitual Residence more simply so that law professionals and parents better understand it?
Determining in which country a child is ‘habitually resident’ is vital for any ‘wrongful removal’ case. Yet it remains a murky, grey area which judges have struggled to define ever since The Hague was introduced in 1980. You only need to read the attached case studies to see that it is extremely difficult for judges as the guidance is just not clear. If judges cannot easily work with this concept, how can parents hope to?
GlobalARRK recommends that guidance is given on the minimum time it takes a child’s ‘habitual residence’ to change from the previous country to the new one. We propose introducing a one year delay in the acquisition of HR to a new jurisdiction. So that a child would keep their HR in the country from where they had come for at least one year. At that point, a clear checklist relating to integration and family connection would help the parents / judge decide whether the child has successfully achieved Habitual Residence.
Interestingly, the concept of HR as one year has already been accepted in returning cases: Article 12 of The Hague Convention on Child Abduction states that a child should be returned unless a one year period has elapsed and the child is now settled in its new environment.
This implies that The Hague Convention already considers one year as the length of time needed to become settled in a new country: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
If one year is used in returning scenarios as the HR guideline, should it not be used for emigration too?
3. How can we standardise Habitual Residence across the world?
In Europe, HR usually updates after around 3 months after a move; in many states in America it takes around 6 months, yet in some places – such as Australia and New Zealand – the change can be immediate. This is extremely confusing for parents and the information is not publicised anywhere.
Currently judges consider many ‘questions of fact’ surrounding the ruling: Mercredi v Chaffe where it was held that the child’s habitual residence is the place that reflects some degree of integration by the child in a social and family environment.
See the links to just some of the recent cases.
Would it not be better if HR was defined in order for judges to make more definitive rulings and to ensure parents do not accidently fall foul of the law?
Proposal on Habitual Residence:
To clearly define Habitual Residence across all Hague signatory countries
We propose that the Habitual Residence of a child updates 12 months after they move to a different country. This length of time is surely the minimum to allow the child to become integrated as well as learn some of the customs and language of the new country. After the 12 months, there should be a clear checklist available to parents and law professionals to give guidance on indicators of Habitual Residence
If HR is defined in a clear timeframe Governments and NGOs like GlobalARRK could then publicise the law effectively to parents before they move abroad, which would serve to prevent many cases of wrongful removal and retention.
Key issues surrounding Relocation procedures
1. How can we make sure that parents needing to return to their home country are not waiting for years in local courts for a Relocation process?
Despite being termed a ‘Relocation Application’ we have found it is mostly used by parents (usually primary carer mothers) to apply to return to their home country with their child after a failed emigration. If the other parent forbids the move, making a relocation application is the only legal route back to their home country.
Parents need to make this application in the family court where their child is classed as ‘Habitually Resident’. Unfortunately, relocation cases usually take between 1-5 years, which is an impossible time-frame for many parents who do not have the financial means or emotional support to stay in a foreign country that long. And of course, if the child was not settled at the start of the process he/she could be by the end!
These ‘stuck’ parents often face great hardships: visa restrictions, unemployment, poverty, social exclusion, language barriers and loneliness. With these factors life can become impossible for the stuck parent and child. They are faced with a choice of either returning to their home country and leaving their child or taking their child with them without permission (i.e. wrongful removal).
Should there be a better system that allows primary carers to resolve the issue more promptly and legally?
2. How can we standardise Relocation criteria?
Statistics show that the outcome of a relocation / leave to remove application varies hugely depending on where the application is made. A recent report by Penningtons Manches says:
Perhaps unsurprisingly, it is countries with a large international workforce that see the most international relocation cases. But that does not mean that those countries share the same approach to what tend to be highly discretionary cases.
In practice this means that in some countries it is almost impossible to get the court’s permission to take children ‘home’. Parents are not aware of this when they initially move abroad so, again, they are then forced to either remain unsupported in the foreign country or to return to their home country and leave their child or ‘wrongfully remove’ their child.
There needs to be an awareness that, for same nationality families, the choice is not necessarily for the child to move with one parent and leave the other behind. If both parents are originally from the proposed destination it is usually possible for both parents to return as a family, if they so wish, whereas it is not always possible for the applicant parent to stay. If the aim is to keep the family geographically together, this might only be possible in the country of origin.
In many cases the court needs to recognise that, if relocation is not granted, life will be very hard if not impossible for the parent who is refused permission to return home with the child. In some cases the parent who has made the application, who is often the primary carer mother, will end up leaving the country without the child.
Some countries are extremely biased towards their own culture, or ignorant of other countries’ virtues. We propose that both countries’ social services communicate in relocation cases to establish where the child would be better off living. Could there be an independent body to ascertain the best country for the child to live?
Proposal: Standardise and Prioritise Relocation cases
Standardise relocation criteria and Prioritise Relocation Applications for ‘going home cases’
We propose that relocation applications, where the applicant parent is from another country and wants to take their child home, should be made a priority in family courts, and should be completed within 6 months.
We propose that Washington Declaration guidance is used consistently worldwide and International Social Services be employed to ensure unbiased accurate information is conveyed to judges and that no matter where a parent is ‘stuck’ they have the same chances of returning home. Also, that data from courts be collected and analysed to ensure that the ‘chances’ of relocation are consistent and fair worldwide.
According to our survey:
- 15% of relocation cases took 2-3 years to complete
- 30% of relocation applications were not granted
- 10% were granted
- The rest are ongoing/ other
Issues with Rights of the Child and safeguarding
1. How can we make sure that no child loses a parent because of lack of Visa?
After a separation abroad, a parent’s visa can be cancelled especially if the parent originally entered the foreign country on a ‘Spousal Visa’. This can mean that they lose their right to live and work in the same country as their child and a child can lose his/her primary carer because s/he does not have a visa to remain in the country even if s/he could otherwise do so.
Article 9 of UN Rights of the Child:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
Proposal: All eligible parents granted visas to stay with their child.
We propose that all non-abusive parents with parental responsibility be considered eligible for a permanent visa to live and work in the country where their child lives and is considered ‘Habitually Resident’. This is concurrent with the UN Rights of the Child, Article 9 as a child should not be separated from his or her parents against their will unless there is abuse or a judicial review.
2. How can every parent have a fair chance to access correct legal advice and representation in a relocation or Hague case?
If one parent does not have enough money to pay a lawyer, they will, in many countries, be unable to access legal advice or apply to relocate or negotiate a way through a Hague case. This can result in the separation of child from primary carer and/ or the perpetuation of domestic abuse: a parent can feel that their choice is limited to stay and accept the abuse or return to their home country without their child.
Proposal: Make means-tested legal aid available in all ‘going home cases’ for both Relocation and Hague
We propose that all parents have access to means-tested legal aid for going home cases, whether Relocation or Hague.
3. How can we ensure the safety of children and accompanying parent being returned under The Hague?
After a Hague case where the judge has ordered a return or the parent has opted to ‘voluntarily return’, the judge will usually call for ‘undertakings’ and/or Orders to ensure that the parent and child are safe and provided for on their return. Unfortunately, ‘undertakings’ are not legally enforceable in a foreign country, so parents and children are returning without any protection – to homelessness, without income, and often back to the place of abuse, putting vulnerable parents and children at further high risk.
Proposal: Improve safeguarding procedures for returning children after a Hague case
We propose that the highest standards of safeguarding be properly implemented prior to the return of a child, using Mirror Orders that can be enforced in BOTH countries.
4. How can we prevent international custody & residence disputes at the source of the problem?
Currently, the only way parents can even attempt to ensure their right to return to their home country after a move is by signing a Pre-Emigration contract. This means that neither parent will prevent the other from returning home with a child within a specific period of time after a move abroad. GlobalARRK is promoting the use of such a contract with the aim of reducing instances of parental child abduction in going home cases. http://www.globalarrk.org/pre-emigration-contract
Proposal: Recognise Pre-Emigration contracts
We propose that judges are made aware of this Pre Emigration document and recognise it as proof of ‘prior acquiescence’.
5. How can we ensure victims of Domestic Abuse are safe?
Our survey tells us that a high percentage of ‘stuck’ parents have experienced domestic abuse after emigrating abroad. Where domestic violence/ abuse is cited judges should use up-to-date definitions of different types of abuse such as coercive control and financial abuse. Article 13 needs to accept that violence towards a child’s primary parent is psychologically harmful to the child (living in an abusive household is deemed exposure to abuse for a child) and it does place the child in an intolerable situation.
Proposal: Protect victims of domestic abuse in Hague and relocation cases.
Follow this guidance from The Hague Domestic Violence Project
https://gspp.berkeley.edu/assets/uploads/page/HagueDV_final_report.pdf (p 358)
Wrongful removal and retention has tragic consequences for children and their parents, and instances are sadly on the rise. We hope that delegates will consider these points and support our proposals to bring understanding, awareness and justice to international children and their parents. We need to work together to prevent international child residence disputes and reduce their devastating impact on children and their parents.
Please send any comments or offers of support to: firstname.lastname@example.org
 A stuck parent is a parent who is unable to return to live in their home country with their children.