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How international issues further complicated child custody cases

Child custody battles can get messy and, when an expat family is involved, parent relocation only adds to the complexities. We asked a top divorce solicitor to explain international child custody issues. While most Western countries abide by the Hague Convention, others, such as Saudi Arabia, do not  Photo: REX FEATURES

By Henry Brookman

4:52PM BST 20 Sep 2012

The death of Candice Cohen-Ahnine – a young French mother who prior to her death had been fighting an ongoing battle with Prince Sattam al-Saud of Saudi Arabia to regain custody of their daughter – has shone a spotlight once again on the growing issue of child custody in cross-jurisdictional divorces in today’s ‘global village’.

The relocation of a parent and child following divorce proceedings can give rise to legal disputes as parents fight to obtain permission to relocate from the courts or, if that is not sought, abscond with their child without permission – an action that can quickly escalate the situation into abduction charges.

If, as Ms Cohen-Ahnine suggested, this was the case in her scenario, one partner absconds with their child to another country without the permission of their former spouse or partner, this will be considered abduction. Under the Hague Convention, international rules apply to member states to ensure the swift resolution of child custody cases and the safety of the child.

The Convention binds member states to recognise which state is the child’s ‘habitual residence’ and to recognise and enforce measures taken in that state of habitual residence, which could result in the return of the child to that state. The overriding test is the welfare of the child looked at on a case by case basis.

While most Western countries abide by the Hague Convention, others do not – Saudi Arabia, for example. As such, the abduction of a child from the UK to Saudi Arabia is not a crime under Saudi law unless there is already a Saudi court order regarding custody of the child. But if a parent is entitled to custody according to a Saudi court decision, then the Saudi courts would consider parental child abduction a criminal offence. It is harder for child abduction cases to be resolved between jurisdictions like Saudi Arabia and those countries operating under the Hague Convention


And what about religious issues? The reason many Islamic – and other countries – do not sign up to the Hague Convention is because religious rules are accorded a special status in their legal systems, or, as in Saudi Arabia and Iran, religious law is their law. And the problem is that religious rules often clash with the ‘case by case’ assessment of welfare. The situation is complicated by the differing schools of interpretation of religious law – Islam, like Christianity, does not always speak with one voice.

A marriage breakdown will often play a large part in an expatriate’s decision to relocate with many people, particularly mothers, citing the need to have family and friends close at a difficult and changeable time as their reason for this. A key English legal decision – K v K – laid down the markers for permission to be given on whether a parent can relocate with their child. In this case, the English Court of Appeal ruled that if parents share the care of their children, the courts will be far more reluctant to allow one parent to relocate with their child away from the other parent. The greater the part the ‘secondary’ carer (typically but not exclusively the father) plays in the child’s life, the greater the damage to the child’s life through relocation – this is the principle the courts are now adhering to.

Expatriates going through divorce proceedings who feel that relocation and custody issues could be raised further down the line should think long term and avoid the instinctive reaction to rush back home. Most countries have a mediation system that allows for parents to use an impartial mediator to reach an amicable agreement about their child’s future. The welfare of the child is the overriding concern in the family courts so even if mediation is not originally chosen, the courts will still encourage parents to work together to reach a mutual decision. In the case of K v K, the court urged the couple to explore living arrangements in the UK before a planned future move to Canada for example.

The fallout from divorce cases can unfortunately be difficult, and cross-jurisdictional issues add an extra layer of complication more often than not. If both parents can focus on their child’s interests ahead of their instinctive or dogmatic reactions, these sad cases may perhaps become fewer.

Henry Brookman is a founding partner of Brookman Solicitors

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