Practical advice for athletes resolving child arrangement disputes: Part 1 - Key general concepts

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Published 31 March 2016 | Authored by: Josh Green

Today’s professional athletes ply their trade in a truly international marketplace. The Premier League increasingly attracts overseas players as the wealth of the sport continues to grow; and in rugby, big-name domestic players seem more willing than ever to move abroad for the greater financial incentives.

Domestic athletes moving overseas, and overseas athletes arriving to compete in England, gives rise to many potential challenges. One particularly emotive issue concerns their children. What happens, for example, if an overseas player moves to England with his wife and two children to play in the Premier League and, while doing so, separates from his wife. She wishes to return home with the children, but the player, who has a number of years left to run on his contract, wishes to stay in England with the children, where he believes they have a better quality of life. How would this be resolved under English law?

Conversely, consider a divorced English professional rugby player who wants to move to France to take advantage of better playing opportunities and financial incentives. He wishes to take his two children with him, but their mother refuses, wanting them to stay in in England where they have grown up. How would this be resolved?

This two-part article provides practical advice to advisors of top-flight athletes who are faced with resolving potentially complicated and emotive issues concerning the residency of an athlete’s children should the athlete wish to relocate overseas in examples like this. Part 1 below covers the key general concepts of child arrangement disputes including “parental responsibility”, “habitual residence” and the extent of the Court’s jurisdiction. Part 2, available here, moves on to explain the Court process should an application to resolve such a dispute (known as an ‘application for leave to remove’) prove necessary.

It is relevant to note at the outset that the two scenarios above are dealt with under the same legal processes, laws and statutes (as set out below), which apply equally to all children “habitually resident” in England and Wales, whether they are born here, or have moved here from overseas with foreign parents.

 

Who is legally entitled to make decisions that concern a child? The concept of “parental responsibility”

In England and Wales, children are legally defined under Section 1 of the Family Law Reform Act 19691 as those who have not yet reached the age of legal capacity, which is 18. The laws relating to children who are the subject of family proceedings (i.e. a dispute) fall primarily under the Children Act 1989

The first key point in both of our scenarios above is to determine which adults have “parental responsibility” for the child that they wish to permanently remove from the jurisdiction.

Parental responsibility” is defined in Section 3(1) of the Children Act and means those persons with all of the rights, duties, powers and responsibilities that a person has in relation to a child and that child’s property. Note that this may not necessarily be the genetic parents.2

It is an important term as it defines who has legal responsibility for the day-to-day decisions in respect of the child’s upbringing. This not only includes minor decision, like what they eat, but also more substantive decisions such as their education, medical treatment, and where they live.

In a situation where the genetic mother and father are married to each other at the time the child is born, both will automatically acquire parental responsibility.3 If they are unmarried then the mother will have parental responsibility but the father will not unless he is named as the child’s father on the birth certificate, or the parents separately enter into a parental responsibility agreement, or there is a further order from the court in respect of who has parental responsibility for that child.4

For overseas athletes, there are international conventions such as the Hague Convention 1980, the Hague Convention 1996 and the Convention on the Rights of the Child 1990 which provide for cross-border recognition of parental rights. Article 18 of the Convention on the Rights of the Child 1990 specifies that signatories to the convention shall “use their best efforts to ensure the recognition of the principle that both parents have common responsibilities for the upbringing and development of the child”, but this only applies to signatories of the convention. Full consideration of these laws is beyond the scope of this article.

If advisors are concerned that their players do not have parental responsibility for their children - for example, if they were not married to the mother at the time of the child’s birth and they are not registered as such on the birth certificate - it is advisable that this is rectified as soon as possible. This can be done either by having a parental responsibility agreement drawn up (if the other parent agrees), or by making a court application for a parental responsibility order. Specialist advice should be sought if an athlete is concerned about their parental status, particularly for overseas athletes.

Applying the concept of ‘parental responsibility’ to the scenarios above, we can see that our English rugby player who wishes to move with his two children to France must have the permission of the mother first. Similarly, it is highly probably that the mother of the children of our overseas footballer must have the player’s consent if she wishes to move back with her children to the country they originally moved from. It need not be written permission, but that would be preferable if there is a possibility of the permission being challenged in the future.  

If permission is not forthcoming, then there is a dispute that may need to be settled by the Courts (see below). It is important to note that if a child is taken without the necessary consent, this constitutes abduction and the person taking the child has committed a criminal offence.5

What is the extent of the English Court’s jurisdiction over children? The concept of “habitual residence”

The key concept is that English courts have jurisdiction over all children who are found to be “habitually resident” in this country. There is no statutory definition of “habitual residence;” rather, it is the extent of the connection between a child and a particular jurisdiction and is determined by the specific facts of each case.

In our rugby player scenario, the children will almost certainly be "habitually resident" in England, as they were born and have grown up in the country. In our overseas footballer example, the matter may not be so straightforward, and a court will have to look to the facts of the case such as the child’s degree of integration in a social and family environment.

As this a question of fact and not legal principle (unlike, for example, determining an adult’s status of domicile6) there is no defined time a child must have lived in England to acquire habitual residence. It is entirely feasible that habitual residence is acquired relatively quickly, so advisers must be aware that very soon after a player moves to this country, an English court may have the jurisdiction to make decisions in respect of their children’s welfare and residency should a dispute arise.

 

What orders can a Court make as regards a child’s residency?

If a child is found to be habitually resident in England or Wales, the Courts have the power under Section 10 of the Children Act 1989 to make a number of specific orders regarding the child’s welfare. These orders are set out at Section 8(1) and are as follows:

A child arrangement order can include whether or not a child stays in this country or can move abroad, as per our scenarios above.

It is relevant to note that section 9(7) of the Children Act 19897 prohibits a Court making a “section 8” order in relation to a child older than 16, unless it is satisfied that the circumstances of the case are exceptional. Section 8 orders include child arrangement orders (as well as specific issue orders, and prohibited steps orders). Section 9(6) of the Children Act 1989 also provides that the court cannot make a specific issue order, child arrangements order or prohibited steps order which will end after the child has reached the age of 16 unless it is satisfied that the circumstances of the case are exceptional.

That concludes Part 1 of the article. Part 2, available here, moves on to explain the Court process should an application to resolve a dispute (known as an ‘application for leave to remove’) prove necessary.

 

References

  1. Family Law Reform Act 1969, Section 1, https://www.legislation.gov.uk/ukpga/1969/46
  2. Children Act 1989, section 3(1)
  3. Children Act 1989, section 2(1)
  4. Children Act 1989, section 4(1)
  5. Under European legislation, abduction is the wrongful removal of a child from its country of habitual residence, or the retention of a child in a country other than that in which the child is habitually resident [v]. There is further statutory provision for abduction in England and Wales which provides for an offence of abduction under the Child Abduction Act 1984, and in accordance with section 1 of the act, will apply to children under the age of 16 if they are taken or sent out of the jurisdiction without the appropriate consent
  6. Re A (children) AP [2013] UKSC 60
  7. Children Act 1989, https://www.legislation.gov.uk/ukpga/1989/41/contents

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About the Author

Josh Green

Josh Green

Josh specialises in all aspects of relationship breakdown including divorce, finances, children matters and nuptial agreements.

Josh has experience in acting for high-net worth individuals in cases involving complex financial structures and international elements, in addition to challenging children matters. He has also acted for a number of clients in the sports industry.

Josh is admitted to practise in England and Wales.

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