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My Children Live Overseas – Can I Issue Children Proceedings in England?

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We receive many enquiries from parents who are British nationals living abroad with their children. A question which repeatedly crops up is can children proceedings be issued in England when the children are living abroad if there is a disagreement between the parents concerning children matters.

Jurisdiction in children cases – what is the test?

In order to bring children proceedings before the court, one must satisfy the court that the children are what is known as habitually resident in the jurisdiction (of England and Wales). Habitual residence is a nuanced legal concept but can be considered as the place where the children live regularly or spend the majority of their time. For example, where the children go to school or are registered with a GP are considered clear indications as to where the children’s habitual residence lies. 

This is a pillar of children law, and an issue which the court considers at the earliest opportunity. This is to avoid the English courts considering children matters upon which they hold no jurisdiction to do so; if the children are habitually resident abroad, it is that foreign court which holds jurisdiction. 

What if the children are living overseas?

It may be that the recent Court of Appeal case of Re S (Children: Parentage and Jurisdiction) [2023] EWCA CIV 897 has provided a possible and seldom used backdoor. This case involved same-sex parents who were British citizens that had relocated to the UAE; the children were habitually resident in the UAE and thus the UAE courts held jurisdiction in relation to the children. However, the parents had dissolved their civil partnership through the English courts. Due to the circumstances of the civil partnership and family law in the UAE, the English court held jurisdiction to consider a child arrangement order application under the Family Law Act 1986 despite the children being habitually resident in the UAE. Children orders were made.

Has this opened the floodgates to applications where the children live overseas?

The simple answer is it depends. There are limitations to such applications and the following points should be noted.

  1. The parties must have divorced in England.
  2. Proceedings cannot be brought if the children are habitually resident in a Hague Convention Country. For example, this rules out European Union member states, Australia and the USA. 
  3. Applications are unlikely to succeed if the children are habitually resident in a non-Hague Convention country in circumstances where the English court considers it would be more appropriate for that country to address children matters. For example, this could include India.
  4. They may be more likely to be successful in circumstances where the children are habitually resident in Middle Eastern/Gulf states.
  5. The court can only make ‘Section 8’ orders which include child arrangement orders, prohibited steps orders, and specific issue orders. This would seemingly rule out an order for the children to be returned to this jurisdiction.
  6. The parents’ circumstances and the specific children issue(s) in dispute will be a key consideration.  
  7. The parties cannot consent to jurisdiction. This is an issue that the court will need to determine upon the facts of each individual case.
  8. Proceedings must be issued in the High Court.
  9. Interestingly, proceedings are deemed to be continuing for many years following their conclusion. In other words, divorce proceedings could conclude, and the court would retain jurisdiction to make children orders until the children have reached the age of 18 (or 16 in Scotland). 

This is a complex area of law where the individual facts of each case will be crucial. Should you believe you need assistance in such circumstances, early specialist advice is recommended; the initial steps undertaken may be all important. Our team at Rayden Solicitors have years of experience dealing with child arrangements and parental dispute cases and will happily assist you immediately. 

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