The abolition of the non-dom regime and upcoming changes to inheritance tax have jolted thousands of the UK’s wealthiest émigrés to act. In short order, many of them have left in a hurry, often heading to Italy, the UAE or another jurisdiction with a tax regime more favourable to globally mobile wealth creators.
But, in some instances, it may be a case of ‘act in haste, repent at leisure’, warns Anna Worwood, head of the family department at Penningtons Manches Cooper. She is not talking about finances, but is instead more concerned with rules around the relocation of children, who may have moved along with a parent aiming to evade the chancellor’s clutches.
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Taking a child to another country (or indeed attempting to bring them back) without the proper permissions or planning can give rise to ‘nightmare situations’, says Worwood, who also serves as chair of the International Academy of Family Lawyers ’(IAFL) Relocation of Children Committee.
International child relocation cases can be particularly ‘high-stakes and emotional’ because they’re binary, she says: ‘Either the child is allowed to move or they aren’t – there is no in-between.’
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In most locales, a parent looking to relocate to another country – whether coming back or moving away – must secure either the other parent’s consent or a court order. Until 2010, the legal approach in England was largely governed by Payne v Payne, a Court of Appeal case that laid out several factors to consider: the relocating parent’s intentions, the wishes of the other parent, the child’s relationship with that parent, and whether the move would ultimately be in the child’s best interests.
But when a family relocates, it’s the legal framework of the new country that applies – and that can be very different. In some countries, such as Greece or Italy – both popular with HNWs – court proceedings can be drawn out.
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This happened in a recent case that Worwood worked on, involving a woman who wished to relocate from Greece with her two children, one of whom (her daughter) had been born to her Greek ex-husband.
‘The father of the daughter refused to consent, requiring the mother to seek permission from the Greek courts to relocate to England,’ says Worwood. ‘The father, who was very wealthy, strongly resisted her application to the court and because of the lengthy legal process in Greece, the mother was unable to travel outside of Greece with her daughter for two years (before her application was finally determined) due to concerns that the mother would not return her daughter to Greece.’
Gaps in international legal coordination
The absence of an international, overarching legal framework around the cross-border movement of children, combined with costly, time-consuming legal processes in some countries, has been linked to higher rates of child abductions. ‘There are countries, like India, where the rates of child abduction are much higher, and that is either because their legal process is too long and too costly or there is no legal process at all,’ Worwood says.
Melissa Kucinski, a member of the IAFL and leading practitioner in Washington, DC tells Spear’s: ‘A lot of parents do not have clarity on the law relating to child relocation and therefore are abducting their children, because they don’t know any better.’
Part of the complexity stems from the lack of consistency among jurisdictions, but efforts have been made to alleviate some of these difficulties.
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The Washington Declaration
This year marks the 15th anniversary of the Washington Declaration, a non-binding statement of principles developed by more than 50 judges and legal experts with the aim of improving how the global judicial community handles international child relocation cases, especially by promoting cooperation and greater consistency across jurisdictions.
The declaration’s main principle is that in all applications for relocation, the best interests of the child should be the primary and paramount consideration.
‘Judges are now guided towards really looking at the child’s relationship with both parents,’ notes Kucinski. ‘The focus is also on the child’s age, their relationship with other relatives and parties who might be good for them, and the opportunities they might have in different places.’
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Kucinski has also seen courts focusing more on how well each parent encourages the child’s relationship with the other parent. ‘Courts are very careful that the child doesn’t lose the relationship with the parent who is not living with them. They look at that very heavily.’
The Washington Declaration also states that countries should have legal procedures for relocating with a child and that parents should be encouraged to use these instead of acting unilaterally, or potentially illegally. It recommends that parents try to reach voluntary agreements, particularly through non-court dispute resolution (NCDR), which Kucinski says can allow for flexibility, privacy and a more amicable approach.
‘NCDR also gives families the ability to positively tailor outcomes, ’she says. ‘In a public court, judges probably would not have time to create a customised schedule, so the decision is often quite lopsided. NCDR allows to consider all relevant factors like family finances and a child’s ability to travel.’
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According to Worwood, the declaration has had an impact. ‘It is very obvious that the guidance of the Washington Declaration is being used by courts in [a lot of] different countries,’ she says.
On the other side of the pond, Kucinski observes a similar trend: ‘Our courts are allowed to consider anything that is relevant to a case,’ she says, ‘and the Washington Declaration adds clarity, solidifies guidance and helps judges be more consistent in their outcomes, which could enable better predictability of what might happen in court, and therefore improve negotiations and settlements.’
But both lawyers still stress the importance of seeking legal advice in every relevant jurisdiction before relocating, to avoid being trapped in complex, lengthy disputes across multiple courts. ‘It’s crucial to speak with legal teams that understand the legal concept of jurisdiction, establish a strategy and set up certain conditions in case the situation changes, ’Kucinski says, ‘because each country has its own way of operating.’
This article first appeared in Spear’s Magazine Issue 96. Click here to subscribe
