Expect the best, but plan for the worst
Often families receive advice on moving abroad from the government, migration agents and TV programmes. However there is one thing that NOBODY tells you about moving abroad with your children (and it’s probably the most important thing!):
If you end up separating with your partner, or if one of you wants to stay and the other wants to go home… you might never be allowed to return home with your children.
Yes – it sounds completely crazy but this is actually happening to thousands of expat parents all around the world.
The ‘habitual residence’ of your child shifts to the new country
International law states: when you arrive in a new country with the intention of staying, the ‘habitual residence’ of your child shifts to the new country. So unless the other parent gives permission to take the children back home, you will need to apply to the LOCAL court to override this.
- It doesn’t matter if all the family are of the same nationality, or how long you’ve been abroad.
- It doesn’t matter if you are fleeing domestic violence and poverty.
- It doesn’t even matter if the other parent is in prison and you are the sole carer! By law you must stay put and wait for the local court to decide if you can go home with the children.
How long does this process take? Usually a relocation application takes around 2-5 years – so if your children were not very accustomed to living in the country at the time you applied to the court the problem is that they might well be by the time it comes to court.
Being ‘stuck’ in a foreign country is tough – being a single mum is hard enough in your own country with family and friends to prop you up. But living thousands of miles from that support and possibly without income from employment can be devastating. Right now there are mums squatting in empty houses, living in caravans and sleeping on neighbour’s floors just because they are too poor to stay in that foreign country but can’t bear to lose their children. It’s heart-breaking.
What if you just take your children home? Many parents do just take their children home – they think that as the primary or sole carer they can unilaterally decide to leave the ‘new’ foreign country and go back home. What can happen then is sometimes a nasty shock: The other parent can invoke ‘The Hague Convention on the Civil Aspects of International Parental Child Abduction 1980’. Basically this means you stand accused of child abduction. You would find yourself in a high court with very limited defences and would have to return your children to the country of new ‘habitual residence’.
Some parents have even been to prison for child abduction for this ‘offence’.
What can parents do to protect themselves?
Before making the move overseas discuss all the possible ‘what if’ scenarios (here are a few to get you started):
- What if one of us doesn’t like living in the new country (but the other does?)
- What if we split up?
- What if one of us/or the kids gets ill and wants to go home?
- What if one of us has an affair and the other wants to go home?
The key question to ask is: Will we both return home OR will one be able to return home with the children?
In addition, how long will the agreement be valid for? (We would imagine two years is a good amount of time to see if you like the new country before committing.)
Know before you go
It is VITAL to make these decisions BEFORE moving abroad, and then to attend mediation with an experienced International Family Lawyer to formally record the decisions.
Currently there is no ‘pre- migration contract’ in existence, but ‘GlobalArrk’ are working to produce one. It would work a bit like a ‘Pre-Nup’, so wouldn’t be 100% watertight in court, however it is a LOT better than nothing.
If you and your partner cannot agree on the ‘What Ifs’, at least you will be going into the move with open eyes. Perhaps you might reconsider moving altogether.
As one of our ‘Expat Stuck Mums’ said recently,
“There’s a lot to be said for staying put. You’ve got your family, your friends, your job and you know where you are”
Find out more about The Hague Convention and Expat Stuck Mums via the webpage: https://www.globalarrk.org/
Also read some heartbreaking personal stories on this article from The Guardian – The mothers fighting to get their children back home again