This is the first of two articles that address the issue of whether a parent can obtain a child arrangements order to see their child, when that parent is living abroad.
The answer to this question is found in statute: The family courts in England and Wales do have jurisdiction to make child arrangements orders in favour of a person living abroad, provided that a) the child in question is habitually resident in England and Wales; or b) is physically present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent country: Family Law Act 1986 Section 3(1) (a) and (b).
‘Habitual residence’ is not defined by the Family Law Act. In most cases, habitual residence will be easily established because the child will be living within the jurisdiction and nowhere else.
In circumstances where the child has a significant connection with another country or countries, the issue of habitual residence will need careful consideration. If the parent with whom the child lives asserts that the child is habitually resident in another jurisdiction, then the family court may need to hear evidence and make a ruling as to whether or not the child is habitually resident in England and Wales. In these circumstances, it will be prudent to obtain specialist legal advice before embarking on potentially costly litigation.
Once the criteria in Section 3(1)(a) or (b) of the Family Law Act are established, the Court has the same range of powers to make child arrangement orders in favour of a parent living abroad as it has for a parent living in England and Wales. The Court can make orders requiring the parent with whom the child lives to make the child available for face to face contact, for contact by way of phone, video/ contact via social media, or for contact by way of letters cards or gifts. The court can make orders that face to face contact shall take place within the jurisdiction and it can make orders for contact to take place abroad.
In Part 2, we will look at whether the family courts can go a stage further and make shared ‘live with’ orders where one parent lives abroad.