Can I get a child arrangements order to see my child even though I am living abroad? Part 2

In Part 1, we established that the family courts in England and Wales can make ‘spend time with’ orders in favour of a parent who is living abroad. Such orders may be made 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).

A common scenario is where the mother and the children are living in England or Wales but the father moves abroad for work, to be with members of his extended family, or to be with a new partner.

In some instances, the parents might agree that the children should spend time with the parent abroad, but cannot agree on the details. However, in other instances, the parent who is the children’s main carer may be opposed to the children having a relationship with the other parent at all. Indeed the children’s main carer may actively attempt to corrode the relationship between the children and the other parent. This may also extend to breaching child arrangement agreements or even court orders. It goes without saying that this can be emotionally and psychologically damaging for the children and may require something more than a spend time with order. In this situation, one of the options open to the court is to make a shared live with order.

The remainder of this article will consider the power of the family courts to make a shared live with order when one of the parents is living abroad.

What is a ‘live with’ order, and what is a ‘spend time with’ order?

Section 8 of the Children Act 1989 gives the family courts the power to make what are collectively known as ‘child arrangements’ orders. Previously, these were known as ‘residence’ and ‘contact’ orders. Child arrangements orders can::

-regulate with whom the child is to live;
-regulate with whom the child is to spend time;
-regulate with whom the child is to have contact (eg: by phone, by social media or by way of cards and letters)

Under a shared live with order, the children would spend some of their time living with one parent and the remainder of their time living with the other parent.

Section 8 also gives the family courts the power to make prohibited steps orders and to determine specific issues. In addition, Section 11 empowers the court to attach conditions to any Section 8 order.

Shared live with orders

Live with orders have replaced residence orders. The early case law refers to residence orders, but the principles apply equally to live with orders. Historically, the courts took the view that shared residence orders should only be made in exceptional circumstances. There was a view that such orders should only be made when the children were spending substantial periods of time with each parent, such that a shared order represented the reality of the situation. Moreover, it was often the case that courts would not make shared live with orders if there was hostility/ non co-operation between the parents, because such orders would be unworkable. However, developing case law has significantly widened the scope of shared live with orders and the courts are increasingly willing to make such orders provided such orders are in the best interests of the children.

Some Relevant Case Law

There is a body of case law that has been established in the High Court and the Court of Appeal where shared live with orders have been made. These cases have set out guiding principles that are applied in the lower family courts:

-The court can make a shared live with order even if the parents do not live in close proximity and even if the division of time between the two parents is not equal:

In the case of Re F (shared residence order) [2003] EWCA Civ 592 the children lived with their mother and the father lived a considerable distance away. In practice, most of the children’s time with him was going to take place during school holidays. The court made a shared residence order even though the children would be spending most of their time living with their mother. The key here was that the home offered by each parent was of equal status and importance to the child.

Re F is of particular importance for our purposes. Although this case involved parents who were both living in the UK, the fact that the parents lived a significant distance apart and the fact that of necessity, the children’s time living with their father could only take place in school holidays makes it relevant for a parent who is living abroad

The court can make a shared live with order even if there is hostility or lack of co-operation between them:

In the case of A v A (shared residence order) [2004] EWHC 142 (fam) there were acrimonious contested court proceedings between the parents over the children. The court made a shared residence order not only because it reflected the reality of the children’s lives but to mark the fact that the parents were equal in the eyes of the law and had equal duties and responsibilities towards their children. The shared residence order also made the point to the parents that where their dispute was essentially about control, what was needed was co-operation.

In Re T v T [2010] EWCA Civ 1366 the court restated the accepted proposition that a shared residence order may be regarded as appropriate where it provides legal confirmation of the factual reality of the child’s life. In this case there was extreme hostility by one parent against the other. The court decided that this should not be a bar to making a shared order. The court decided that a shared residence order may be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.

Case Study

In 2018, the court made a live with order in favour of the mother and a spend time with order in favour of the father. The mother repeatedly breached the spend time with order and she sought to undermine the children’s relationship with their father. The father brought the matter back to court. The court heard evidence and made findings of fact against the mother that she had indeed breached the court order and that she had sought to undermine the relationship. The mother continued to breach the court order after these findings had been made. When the CAFCASS officer spoke to the mother as part of his enquiries, the mother made comments to the effect that the children’s home was with her only. She diminished the status of the father. In the course of the proceedings, the father and his partner decided to move to the Far East. This was for legitimate family and work reasons. The CAFCASS officer recommended that there be a shared live with order. The mother opposed this recommendation on the grounds that the children’s home was with her; that a shared live with order would not reflect the reality of the situation; and that the court had no jurisdiction to make a live with order that operated outside the jurisdiction of the court. The mother also alleged that there was a risk that the father would not return the children to the jurisdiction.
The Judge gave a carefully considered Judgment in which she rejected the mother’s arguments; she concluded that the court did have jurisdiction to make a shared live with order that operated in part, abroad; she ruled that it was in the children’s interests to do so, given the mother’s ongoing failure to promote the children’s relationship with their father. It was important that both parents were of equal status in the eyes of the children. The Judge concluded that there was more risk of the mother breaching the court order than of the father doing so.

Summary

In circumstances where the children’s main carer is hostile or resistant to promoting child arrangements with the other parent, the family court can make a shared live with order. The fact that there is conflict or hostility between the parents is not a bar to making such orders. The fact that in practice, the children are likely to spend much more time with one parent than the other is not a bar to making such orders. In deciding whether to make a shared live with order the court is entitled to look beyond whether such an order reflects the reality of the situation on the ground and is entitled to take into account broad welfare considerations. Shared live with orders can send a clear message to the parents and to the children that both parents are equally important to them and that they have a home with both of their parents.

The principles that were established in the case law that is set out above concerned parents who were both living within the jurisdiction of England and Wales. However, provided the children are habitually resident or physically present within the jurisdiction, the courts can make shared live with orders in favour of a parent who is living abroad.

These can be complex and strongly contested proceedings. The terms of the court order will need to be tightly drafted; the appropriate warning notices must be included; consideration will need to be given to prohibited steps orders; and there may be issues about lodging the court order or applying for a reciprocal order in the overseas jurisdiction. Any parent contemplating issuing court proceedings where there is an overseas element should consider seeking expert legal advice.