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Cross-Border Child Arrangement Agreements: A Case Study on Enforcement and Legal Strategy

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Posted in: Divorce, Family and children
Date published: 06/02/2024

Within the complex domain of family law, cases that span across international jurisdictions present a complex array of challenges for legal practitioners. This case study delves into a situation where our client South African national (living in that jurisdiction), post-divorce, encounters difficulties in enforcing a separation agreement’s child arrangement provisions after his ex-wife relocates to England with their child.

Legal Jurisdiction and Enforceability

After their divorce in South Africa, the couple formalized a separation agreement that addressed both financial aspects and arrangements for their child. Despite the agreement, once the divorce was finalized and the mother moved to England with the child, she began to obstruct the father’s agreed-upon contact arrangements and to restrict his relationship with her. The father was supposed to have regular video calls with his child twice a week and face-to-face visits during his stays in England. As these arrangements began to falter, the father sought legal help fm the IMD Team to formalize the contact arrangements in England.

The primary challenge arises from the fact that separation agreements concerning child arrangements made abroad are not automatically enforceable by English courts. They generally necessitate an application under the Children Act 1989 for child arrangements orders that are enforceable in this jurisdiction.

Welfare of the Child:

The court, while considering the existing agreement, places paramount importance on the child’s welfare, guided by a welfare checklist outlined in Section 1, particularly 1.3, of the Children Act 1989. This checklist includes:

1. The child’s physical, emotional, and educational needs:
This underscores the importance of considering the holistic needs of the child, ensuring their development is supported in all key areas.

2. The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding):
This recognizes that children should have a voice in matters that affect them, with due weight given to their views based on their maturity and comprehension.

3. The likely effect on the child of any change in circumstances:
This factor considers the impact of potential decisions on the child, recognizing that stability and continuity are often crucial to their wellbeing.

4. The child’s age, sex, background, and any characteristics of theirs which the court considers relevant: This ensures that decisions are made with an understanding of the child’s individuality, including their cultural, religious, and social background.

5. Any harm the child has suffered or is at risk of suffering:
This includes looking at past experiences of harm and assessing the risk of future harm, emphasizing the need for protective measures when necessary.

6. How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs:
This evaluates the ability of parents and others to provide for the child’s needs effectively.

7. The range of powers available to the court under this Act in the proceedings in question: This acknowledges the legal tools and measures the court can employ to safeguard and promote the child’s welfare.

Importance of Mediation and parental responsibility:

Moreover, it is crucial to underscore the importance of mediation as an initial step prior to initiating court proceedings in England. Mediation serves as a constructive avenue to resolve disputes amicably and is generally a prerequisite in the English Family Law system, emphasizing its commitment to non-adversarial resolution methods. In this instance, the initial approach involved sending a firm letter to the child’s mother, a strategy that brought some improvement in the father’s access to his child. This step not only facilitated better communication but also reinforced the importance of involving both parents in the child’s life, in line with parental responsibility principles. If things falter, formal mediation will proposed and, if that fails, then an application will need to be made to the courts.

Practical Steps for Resolution:

The situation also brings to light the practical steps needed to address such disputes, starting with formal communication aimed at resolving the issue outside of court. This approach has served as a testament to the effectiveness of clear, direct communication and also aligns with the legal requirement to attempt to resolve matters without the need for court intervention.

However, the case also prepares for the possibility of proceeding to mediation and, if necessary, court action to formalize the child arrangements. This progression from negotiation to potential litigation outlines a structured approach to resolving international child arrangement disputes, offers a summary blueprint that can assist affected parties.

In conclusion, this case study briefly considers the legal and practical challenges involved in enforcing foreign separation agreements concerning child arrangements in England. It also emphasizes the paramount importance of the child’s welfare in legal proceedings, the necessity of mediation, and the strategic use of formal communication to facilitate amicable resolutions.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

To find out more about our services, visit International children matters and contact disputes section of our website.

Published by:

James Legg – Barrister

Family Law – IMD Solicitors LLP


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