Posted by Alexandra Boardman on 10th June 2015

Q: I am married to an EU National. Our marriage has recently broken down and I have moved out of the house. What advice can you give me about spending time with my children?

A: If you are still on good terms after separating then it is always preferable to reach an amicable agreement about how much time your children will spend with you both. If it is proving difficult to resolve the arrangements, we recommend that you seek the assistance of a trained Mediator who may be able to help you reach an agreement. Alternatively, you can seek independent legal advice. Legal advice alongside mediation may be appropriate ‒ especially in complex circumstances such as where there are elements of European or International Law.

Q: Is it important to formalise arrangements?

A: If an agreement has already been reached on the amount of time your child will spend with each parent, we recommend this is put in writing and signed by both parents. Then, if there is any future disagreement about the arrangements, you can rely upon this document to evidence the agreement. A formal agreement can be drawn up either by a Mediator or through a family lawyer if you prefer.

Q: What happens if my spouse decides to return to their home country?

A: The advice we give in this instance depends on the circumstances surrounding your spouse’s desire to return to their home country. Issues include where the child was born, how long the child has lived in our jurisdiction, whether the child will remain here or whether it is intended that the child will travel with the EU National.

Q: I am not from an EU member country, does this make a difference?

A: If neither parent is British or has the right to live in the UK but has travelled here for work, for example, and the other parent has accompanied them on a Spousal Visa, this will be a more complex situation to advise on. Issues include whether the non-EU partner’s home country is a Member, Non-Member Contracting State or not a signatory to the Hague Convention. If your ex-partner is refusing to allow you access to your children, you will need to take legal advice. In this instance it will be very important to establish what the other parent’s plans are in the short, medium and long term in relation to the care of the child ‒ if you are concerned that the child may be taken abroad without your consent, we recommend that you seek legal advice urgently.

Q: Should I apply to the court for an order?

A: The court only needs to become involved in the arrangements for a child if the parents cannot agree what is in the child’s best interests, or there are other significant issues. If one parent intends to leave the jurisdiction with the child, it may be an opportune time for either parent to ask the court to consider what is in the child’s best interests, especially where parents disagree which country the child should reside in. Such an order can be enforced if the other parent does not comply with the provisions for the child to spend time with the non-resident parent. An application would also be appropriate if there is a risk that one parent will, without the consent of the other, remove the child from this jurisdiction potentially preventing any future contact between the child and the other parent.

Q: What if I decide to return to my home country (A non EU member state)?

A: If one parent decides to leave this jurisdiction with or without the child, that parent will benefit from either a written agreement or preferably a court order setting out the parameters for the time the child will spend with each parent. The parents can rely upon that agreement or order in the future if there is difficultly implementing the parameters.

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