After last week's shocking discovery about the financial implications of his divorce in England, Xabier is now troubled by a new dilemma: what happens if he returns to Spain but Sara wants to stay in England with Iker? Or if Xabier wants Iker to keep studying in England but Sara wants to go back with him to Spain? In this chapter, we will explore the complexities of child arrangements and relocation disputes, which often go hand in hand with international divorces.
Understanding jurisdiction in children matters
In both Spain and England, jurisdiction over parental responsibility issues - including living arrangements, schooling, travel authorisations, passport renewals, etc. – is determined by the child's place of habitual residence. Iker has been living and studying for years in England, so it would be very difficult indeed to argue that he is not habitually resident here.
This has a direct consequence for Xabier: if Sara decides that she wishes to stay in England even after the divorce and financial remedy proceedings are done with, and she refuses to agree to Iker's return to Spain, Xabier will need to file an application before the English courts, and it will be the English courts that will decide, on the one hand, whether it authorises Iker's permanent relocation to Spain, and on the other hand, what Iker's living arrangements should be (both in the event he stays in England, and in the event he returns to Spain). This is a long process that is decided, as it would happen in Spain, in accordance with the child's best interests, which is the paramount principle.
The role of CAFCASS and Independent Social Workers
In England, the decision-making process is driven by the intervention and recommendations of the Children and Family Court Advisory and Support Services (CAFCASS) or of an Independent Social Worker, who will make enquiries, interview the parties and the child (whose views can carry great weight), and make recommendations to the judge as to what the outcome of the case should be. These recommendations are not binding but they are usually followed, so there can be an uphill battle for Xabier if the CAFCASS/ISW report is against him.
In the event that Xabier prefers for Iker to continue his studies in England, but Sara disagrees and wants to return to Spain with him, she will be the one that will need to file the application in court.
What neither Sara nor Xabier should do is, as it often happens, try to take advantage of some holiday time in Spain to retain Iker there. This, in addition to being a criminal offence, is sufficient to file an application for Iker's summary return to his place of habitual residence (i.e., to England) pursuant to The Hague Convention on international child abduction, of which both countries are signatories. This is a process that the British authorities treat summarily, and it does not consider the substance of the matter (e.g., what the future place of habitual residence should be, or what the child arrangements should be) – it simply concerns itself with ensuring the child's return.
Looking ahead: Enforcing cross border orders
Next week, we will explore strategies for ensuring that any English court orders – whether related to divorce, finances, or child arrangements – are recognised and enforceable in Spain.
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