IMPORTANT READ for all couples about to emigrate with their children!!!

[SallyKay]

Hi there,

I'm about to emigrate with my wonderful family, my husband Greg and my two children. We have always looked at it as an adventure and that if things didn't work out we could just return home. This I'm sure will still be the case but I wanted to share something with you all.

You never really think about the ' what ifs ' but I was made aware of an awful situation one lady ended up in and since then have found out that many more women have too, I'm sure some men also.

Emigrating is such a big move and for some partners it can lead to separation as well as many other reasons of course. In this awful instance if one partner wants to return home to the UK and the other doesn't did you know that that person CANNOT return to the UK with their children? It is against the law if the other partner doesn't agree. If you were to fly home with your children, even if they are British Born it is classed as child abduction and you will be ordered to return them to Australia!

After reading these stories we made the decision to get something written up with my lawyer as we both agreed it was important to write up our intentions and agreements before we left the UK, just incase.

The problem is you never know how someone can turn after a break up, even my husband agreed with that and although he will say now that he'd never stop me wanting to go home with the kids if we break up you just never know. He is Australian and so if we separated it would be unlikely he would want to return to the UK but this law applies even if you're all British, once you land your children are Australian Residents!

I have been in close contact with a lady who had this happen to her and with her kind help and my mum researching it a bit, my husband and I have a deed written up stating our intentions, what will happen to the children if we separate if I want to return to the UK. It also states that he will NOT take action under The Hague Convention Law, Child Abduction if I want to return home with them if things don't work out. This document cost £480, I think it's worth every penny as a security. I would strongly suggest people consider doing this before they leave. I have got 3 copies and my mum is keeping one here in the UK. It's not a nice thing to think about but it has happened to many and is a very sad ending to what should have been such an amazing experience. I'm not posting this to put a downer on people's dreams just sharing information I think is important to be aware of.

This post is for information not open to the those 'negative' posters who like to swoop in and be rude! I posted a reply on the thread about this subject a little while back giving some information about what my mother had read only to receive a reply from somebody stating that they felt my mother was interfering and that that my husband should have been mortified by the fact that I'd even considered this! It's posters like that that make me dislike this site! I have taken time to write this to share the information I have gained in the hope that it may help others so please be respectful. This is meant to be helpful. Thank you.

This is important information and information I'm very glad I was given to make me aware of this law that so many don't even know about. I hope this is helpful.

[Guest]

Hello

 

Thank you for posting this.

 

This is a subject often discussed on the forum here and we have an ongoing thread on the subject as a sticky with lots of real life experiences and legal situations.

 

You can find it here

 

http://www.pomsinoz.com/forum/news-chat-dilemmas/47091-children-what-happens-if-you-your-partner-decide-go-home.html

[Guest]

Just out of interest, has a case where this (sort of) document been used in the event of a couple separating ever been tested in a court of law in Australia? If so, do you happen to know the outcome?

[SallyKay]

Hi Snifter,

Yes, I did reply on that thread but had a rude poster make a comment and so I decided to start a new thread as i didn't want an two and fro debate about it, it's just not necessary. This is purely information to help out others not to argue about it.

I have been in touch with one of the ladies posting on that thread who had this happen to her, we are still in touch and she has said she will present my document, bar the personal info obviously to her lawyer and see what they say and whether if she had that at the time if it would have helped. I'm sure she will update on here. I was advised by my lawyer that if I was ever in that unfortunate situation that it should be handled in the UK courts and this is stated on the deed. I'm not entirely sure why she felt this was important but maybe someone a little more informed on this could tell me the importance of that as, as far as I was aware this Hague Law applies also in the UK too??

[Guest]

I'd think if resident in a country then if a child dispute case had to go to court the case would be heard in the country of residence. I am not sure if you could even opt to have such a court case heard back in the UK. I thought it was all done via the Aus courts once resident in Aus.

[SallyKay]

To be honest I would have thought so too. I was told this deed isn't legally binding but would hopefully have a fair bit of strength to it and in the case of the lady I have been in contact with she has said it is well worth doing as evidence that you had both agreed to this prior to emigrating. Our deed also states that although we are relocating to Australia we will remain habitual residents of the UK. This is also important to include. Unfortunately you're only going to really know how helpful this is deed is until the situation arises but as I said earlier this kind lady is going to speak to the lawyer that dealt with her case so hopefully we will get an idea that way.

[starlight7]

Be interesting to hear if this agreement is worth the paper it is written on when push comes to shove. What if one of the parties concerned changes their mind? A bit of a can of worms I think.

[Sammy1]

If one of you changes their minds, the document could very easily be thrown out, especially if you have been here a number of years and the children are settled and happy.

 

I agree with Starlight and question the deed's worth.

 

I am actually one of 'those' who has had to remain in Australia, so I have a more personal perspective.

[Guest The Pom Queen]

Hi Snifter,

Yes, I did reply on that thread but had a rude poster make a comment and so I decided to start a new thread as i didn't want an two and fro debate about it, it's just not necessary.

If this happens please report the member concerned as we do not want good threads like that taking over with bickering

[Rachel Tilley]

This is all a very complex, but what Sally has had written up is a deed that will hopefully be evidence of the defence of 'prior acquiescence'.

 

The Hague Convention of International Parental Child Abduction 1980 states it is an offence for a parent to remove a child from its country of 'habitual residence' without the consent of the other parent. The defence to this is that the other parent agreed to the removal, thus giving 'prior acquiescence'.

 

The terminology of 'habitual residence' is also not defined in law and can be interpreted by different authorities for different reasons. So, in the case of people moving to the UK to claim benefits, they are not deemed 'habitually resident' until a certain number of months have passed, but in cases of moving children overseas they are classed as 'habitually resident' from the moment the plane lands! This inconsistency with 'habitual residence' makes is impossible for families to have 'trial' periods abroad, so Sally and her husband have written up an agreement that their move to Australia in the first instance is not changing their country of 'habitual residence' from the UK with immediate effect.

 

The case would be heard in the UK if Sally or Greg were to leave Australia with the children. The parent remaining in Australia (in legal terms they are called the 'left behind parent') would then contact the authorities in Australia to say they have had their children taken without their consent, and this would start the ball rolling under the Hague Convention of Parental Child Abduction. The Australian authorities would contact the UK authorities, and the case would be heard at the Royal Courts of Justice in London. Australia would be asking England to uphold the law and send the children back to Australia. The English courts are legally bound to comply with this, unless there is evidence that there was 'prior acquiescence' for the removal. In this case there would be. It would be the document that Sally has had drawn up.

 

Whether this would be upheld in the UK remains to be seen. As far as I know, Sally is the first person to have this drawn up. Is it a waste of money? Nobody yet knows. All I know is, verbal consent counts for nothing. My ex promised me that if I didn't like Australia we would all return home as a family, so I went on that trust and belief. He then changed his mind, so when I returned home with our son he successfully had us returned under the parental kidnapping law of the HC. The UK court were obliged under the HC to order a return of my child - and that is when the Australian courts have jurisdiction over what country the child will live in future.

 

Applying in the Australian Family Courts for a Relocation Order is the next step for the parent to take if they still want to return to their home country. This can take years and costs around $40,000 upwards. Not all applications are approved and often judges will rule that the child is to remain in Australia as they are very pro 50/50 shared care. I was one of the lucky ones and allowed a Relocation Order because I only had a temporary visa and there was no way I could obtain Permanent Residency. If I'd held PR the outcome would have been very different.

 

What Sally has done is to try and prevent this whole scenario from unravelling. If I'd have known then what I know now I would have considered £480 money well spent. Getting proof of 'prior acquiescence' is an absolute must to avoid being sent back to a country under the HC.

 

I admire Sally and Greg for doing this and sincerely hope they never have to use it and that their migration is a total success.

 

http://www.international-divorce.com/Acquiescence-or-Consent.htm

Edited August 6, 2014 by Rachel Tilley

[Peach]

If this happens please report the member concerned as we do not want good threads like that taking over with bickering

 

I was the rude member, I spoke from the heart about how I'd feel if my mother-in-law was feeding my partner with doubts...

[Guest]

Rachel - but how long can habitually resident count for on e you leave? A year after moving, 2 years, 5 years? After a year or more living out of the UK and if on a PR visa would it not be hard to argue the UK was actually your place of residence?

 

Not trying to be awkward, just understand how it could be determined.

[Peach]

Rachel - but how long can habitually resident count for on e you leave? A year after moving, 2 years, 5 years? After a year or more living out of the UK and if on a PR visa would it not be hard to argue the UK was actually your place of residence?

 

Not trying to be awkward, just understand how it could be determined.

 

Even on a temporary visa the Hague laws look at where the child is being schooled and whether your intent is to remain in the country (regardless of if your current visa allows permanent residency) to define residence.

[Quoll]

Good luck guys! Who knows if it'll be enough should, heaven forbid, it is required. Just another thought though, be sure your DH has his UK citizenship before he leaves because it could be a moot point otherwise!

[Rachel Tilley]

Rachel - but how long can habitually resident count for on e you leave? A year after moving, 2 years, 5 years? After a year or more living out of the UK and if on a PR visa would it not be hard to argue the UK was actually your place of residence?

 

Not trying to be awkward, just understand how it could be determined.

 

Each family that emigrate will have a different view on how long their move overseas is. Some will agree that the move is permanent from day one and have no intention of returning to their home country and will sell up everything they own. Others, like myself, will have an agreement that they will 'give it a go to see if they like it' before they make that decision to remain there permanently, and if they don't want to, will leave things in place in the UK to return to and rent their house out rather than sell it. In my case, I agreed to 'give it a go' for two years and our house was rented out. Others may say 12 months, or 18 months. So in reality, and in mind set, you have not actually permanently migrated, you are trying out living in a different country. Everyone should have the right to try something before permanently committing to it, but the HC law doesn't take that in to account. How many times on this site have we seen people make the comment "we've nothing to lose", or "if it doesn't work out we can come home again"? People generally believe that they have a right to try the lifestyle before being permanently committed to it.

 

In cases like that, I believe your 'habitual residence' should not automatically be changed. So a deed can be written up for a set period of time, and within that time an agreement is made between a couple that they will not object to the other parent returning home with the children and they will not invoke the HC if they do. I agree that such deeds cannot be open ended, and the longer someone remains overseas the more likely it is that they have set up a life there, but certainly for two years I don't think it is unreasonable to be able to return 'home' without punishment for doing so.

 

Each deed will be individual to each families requirements. The wording is not set in stone, but certain terminology is used that makes it quite clear that both parties understand the law involved, are aware of the Hague Convention and will not invoke it as they are giving permission aka prior acquiescence for the children to return to the 'home' country.

 

At present time, this is the ONLY protection that someone can try to put in place. If the High Courts around the world choose to ignore the document that is down to them, but at least some people are trying to protect themselves from the ordeal of being made to live in a country they don't want to live in, or have to give up their children.

 

This is mainly for people who move abroad with children already born. Once you move and have a child in the country you have moved to makes things far more difficult to sort out.

[Guest The Pom Queen]

I was the rude member, I spoke from the heart about how I'd feel if my mother-in-law was feeding my partner with doubts...

It's not like you to be rude. Let's hope this thread doesn't go that way :yes:

[SallyKay]

Good luck guys! Who knows if it'll be enough should, heaven forbid, it is required. Just another thought though, be sure your DH has his UK citizenship before he leaves because it could be a moot point otherwise!

 

Quoll, we literally found this out 3 days before we were going to book our flights back in May! Lol! Talk about a shocker, he was unaware that after leaving the UK for two years he'd lose his residency! All sorted now tho thankfully! He is a half chappy!!

I think regarding this deed, I'm just thankful I have it, whether it will stand for much that I'm not 100% sure of but I think it's better than nothing at all and if it helps a bit it's worth it!!

Peach, I appreciate everyone is entitled to an opinion but sometimes wording things in that way isn't great, my mum uses this site and would have read that. My mum has a great relationship with my husband but as most mums do, she was only looking out for me as on reading about it it shocked her. You can't predict the future and she wanted me to be aware of it. I'd like to hope I will protect my children in the same way when they're older. My husband fully understood it and agreed it was important, we discussed it as a family and decided to go ahead.

[SallyKay]

Be interesting to hear if this agreement is worth the paper it is written on when push comes to shove. What if one of the parties concerned changes their mind? A bit of a can of worms I think.

 

This is a valid point, I also had included on this deed that should one of us change our minds on our intentions for the children once in Oz if a separation were to occur that it must be written up and changed on the deed.

[Tina2]

SallyKay Thank you for starting a new thread, this is such an important topic. The best advise I can give to anyone if things go wrong and you cant agree on what is to happen is GO NO WHERE NEAR THE FAMILY COURT. There are now family councilors and court reporters who can draw up parenting agreements, where you talk through your issues, decide on a list of things you both agree to and sign off on that. Far less expencive than the family court and far less emotional.

Another thing to consider is that if the marrage fails and you may decide you want to remain in Aus but not in the location you are currently in what happens then ? Maybe consider adding to the document what will happen if you want to move to a different state ? how will access work, again this is all controled by Family Court so if you can reach an understanding outside of the family court while there is no conflict about what will happen that is a good thing.

[Nikey]

Thank you @SallyKay

I understand that you are not asking to be judged....you are just trying to help others. Again, thank you.

As for court cases - we never know the outcome of any court case and it seems to me that you are taking all the sensible precautions that you can. It is better than doing nothing and thinking "it won't happen to me".

Good for you. Good luck on your new journey in life x

[Peach]

Peach, I appreciate everyone is entitled to an opinion but sometimes wording things in that way isn't great, my mum uses this site and would have read that. My mum has a great relationship with my husband but as most mums do, she was only looking out for me as on reading about it it shocked her. You can't predict the future and she wanted me to be aware of it. I'd like to hope I will protect my children in the same way when they're older. My husband fully understood it and agreed it was important, we discussed it as a family and decided to go ahead.

 

That's wonderful to read... And as my thread has been removed, I'll air my opinion here -- until it is swiftly removed. Well meaning in-laws who bring doubt to their offspring should keep their mouths shut. :wubclub:

[MovingtoTasmania]

Whilst I personally wouldn't take the steps that you have @SallyKay, I understand the reasons that you have done so.

 

As far as @Peach's comments go, I know myself that my son had a lot of interference in his relationship from his in-laws. That relationship has now broken down sadly and not only that, my ex-daughter in law no longer has contact with her side of the family because of the interference so I can completely understand where Peach is coming from in that respect.

 

I don't feel that she meant those comments specifically to your situation but in general.

[Guest The Pom Queen]

That's wonderful to read... And as my thread has been removed, I'll air my opinion here -- until it is swiftly removed. Well meaning in-laws who bring doubt to their offspring should keep their mouths shut. :wubclub:

And that will be the end of it now.

[SallyKay]

Well, today our container came, I have been up to my ears with packing, I have an Autistic child and I spent the small amount of time I had to share what I felt would be of help to some.

Edited August 8, 2014 by ali
comment directed at other member

[Wellers and Whitehead]

Even though I don’t have any children. . This is very helpful information. If some people had been aware of the HC things may have turned out differently for them.

Every day is a school day. . Best to be educated on things to make informed decisions rather than be in a situation that may have been prevented x