Divorce and Family partner Toby Atkinson, an experienced practitioner in the field of international child abduction, spoke to Tatler Address Book about child abduction and divorce. Toby is frequently instructed by ‘left-behind’ parents in both Hague and non-Hague Convention cases, and on international relocation cases and jurisdiction disputes.
It’s hard to think of a more international family than one comprising an American global pop sensation (Joe Jonas), a British film and television star (Sophie Turner), and their two children. Whilst their lives may seem glamorous from the outside, it is not hard to imagine the pressures their careers and schedules bring to bear on family life. When you add a divorce into the mix, with each parent wanting to live with their young children on different continents, life becomes even more complicated.
Recent media reports indicate that Joe Jonas’ and Sophie Turner’s ‘amicable’ divorce got off to a rather rocky start, with the separating couple experiencing many of the issues that lots of (less well known) divorcing international couples go through.
After Jonas filed for divorce in the US, Turner then filed a court application under international child abduction laws (The 1980 Hague Convention on Child Abduction to which both the USA and the UK are signatories) claiming that Jonas had wrongfully retained their daughters by refusing to allow them to return to England, and by holding onto their passports.
What constitutes child abduction?
‘Abduction’ of children, and their wrongful retention in another country, arises either when one parent travels abroad with the children without the consent of the other (or without the authorisation of a court order). Or when one parent, after an agreed international trip, does not return the children to their home country (legally this is referred to as the place of their ‘habitual residence’).
In this case, Turner’s position was that Jonas was wrongfully retaining their daughters in New York and refusing to return them to their habitual residence in England. In order to have succeeded in her child abduction application, the court would have to have found that the children were “habitually resident” in England i.e. they were more connected to this country than the US (because a person can only be habitually resident in one country at a time). Factors such as how much time the children spend in each country, where their friends are based and where they go to school would all have been important considerations for the court to weigh up – although, particularly in cases involving young, pre-school age children with international parents, establishing habitual residence can often be a very difficult issue for the court to determine.
Even if Turner had succeeded, that might not have been the end of the litigation. Jonas could then have applied in this country for the English court’s permission that the children relocate to the US to live with him. Relocation applications are not uncommon among divorcing international families but they are, understandably, often extremely hard fought since they have such a binary outcome.
Fortunately in this case, to their great credit, Jonas and Turner seem to have been able to reach a mediated agreement as to how they will co-parent their daughters across two continents, thus avoiding the stress and cost of ongoing contested court proceedings, possibly on both sides of the Atlantic. So whilst it seems that their separation did not necessarily start off on the right foot, their mediated agreement is a very positive indicator that they will now be able to establish an effective and amicable co-parenting relationship, which ultimately will always be in the children’s best interests.
What do international families need to know?
For families with connections to multiple countries, the natural and understandable reaction upon relationship breakdown is often to want to return home to the country of one’s origin with the children. But whether you are separated or not, if you want to travel abroad with your child or children, or remain there following an agreed trip, in the absence of a court order to the contrary you will require the consent of every person with parental responsibility, otherwise you may be committing a criminal offence, even if inadvertently. If, contrary to an agreement or a court order, your children have been removed from their home, you should seek urgent legal advice. Likewise, if you have taken your children from their home, advice should be sought immediately as to your legal position.
If you are concerned, upon the breakdown of your relationship, that your partner may be a ‘flight risk’ then speed really is of the essence to try to prevent the removal of your child abroad. It can be much more difficult to secure the return of children from some countries than others, particularly from those which are not signatories to the 1980 Hague Convention.
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