Contact with a child outside the UK
I You have exisiting contact orders I You do not have contact orders I Contact with your child outside the European Union in a Hague Convention Country I Contact with your child in a non Hague Convention Country I Outgoing contact cases I Incoming contact cases I costs I
Contact with your child within the European Union
From 1 March 2005 some British orders dealing with parental responsibility including contact with child, will be enforceable throughout the European Union with the exception of Denmark. All orders concerning parental responsibility made in proceedings commenced after 1 March 2005 will be enforceable within the European Union under Council Regulation (EC) No 2201/2003. The legislation is commonly referred to as Revised Brussels II.
Brussells II Regulation
Brussells II Guide
Overview of Brussells II
If the order you are seeking to enforce was made in proceedings commenced after 1 March 2005 it will be directly enforceable throughout the European Union (except Denmark). If the order was made in proceedings commenced prior to that date it may be enforceable under the transitional provisions of the Revised Brussels II Regulation. These are set out in article 64 of the Regulation. Orders made in Scotland and Northern Ireland are also covered by the Revised Brussels II Regulation. Orders made in the Crown Dependencies and the Overseas Dependant Territories are not covered by the Revised Brussels II Regulation.
You have existing contact orders
If the orders were made in proceedings commenced after 1 March 2005 you will be able to enforce those orders in the European Union country other than Denmark, in which your child is living, under the Revised Brussels II Regulation. You will need to obtain a certificate in accordance with annexure III of the Regulation from the court which issued the orders. You should contact your solicitor or the ICACU.
If the orders were made in proceedings commenced prior to 1 March 2005 the orders may still be enforceable under the transitional provisions of the Revised Brussels II Regulation. You should contact your solicitor or the ICACU to discuss the circumstances.
If the orders are not enforceable under the Revised Brussels II Regulation, you may be able to register the orders in the country in which your child is living under the European Convention
The Convention
The Central Authority
Operation of the Conventions
European Convention countries
You do not have existing contact orders
You may be able to make an application under Article 21 of the Hague Convention. You should seek advice from the ICACU, especially if you are also pursuing a Hague Convention return application as it is important to ensure that nothing you do could be understood to be acquiescence to the child remaining in the country to which they have been taken.
Contact with your child outside the European Union in a Hague Convention Country
If your child lives in a Hague Convention country which is outside the European Union and you are being prevented from having contact with them you should contact the ICACU. They will be able to provide advice and assistance about making an application under Article 21 of the Hague Convention for contact. If you are also pursuing a Hague Convention return application it is important to ensure that nothing you do could be understood to be acquiescence to the child remaining in the country to which they have been taken.
Contact with your child in a non Hague Convention Country
If your child lives in a country outside the European Union and that country is not a party to the Hague Convention you will need to commence legal proceedings in the country in which your child is living. If you have existing British orders they will not be enforceable in the country in which your child is living but such orders may be of evidentiary value in the foreign proceedings.
How contact cases are handled
Outgoing contact cases
Outgoing contact cases are those where children are living outside England and Wales. Cases which come under either the Hague Convention, the Revised Brussels II Regulation or the European Convention will be handled by the ICACU. In outgoing cases the ICACU discusses the circumstances with the applicant or their solicitor and may ask them to fill in an application (questionnaire) . The ICACU may also ask the parent to make a written statement, and provide copies of any court orders. It is useful to provide a recent photo of the child. An application is then prepared on the basis of the material provided. That application and supporting documents is sent off, with translations if necessary, to the Central Authority of the country in which the child now lives. Thereafter, the ICACU will monitor the progress of the case, liase with the Central Authority of the requested state and the applicant, give advice about English law and do all that it can to help to bring the case to a successful conclusion. There is no charge for the services of the ICACU.
If your case does not come under the Conventions or the Regulation you will need to secure the services of a solicitor in the country in which your child is living. The Foreign and Commonwealth Office (FCO) will be able to offer assistance in locating a solicitor and may be able to provide similar assistance to that provided in the case of abduction to a non Hague Convention country.
Incoming contact cases
Incoming contact cases are those where children are living in England and Wales. The assistance which can be offered to applicants seeking to establish or enforce rights of access under the Hague Convention is limited in England and Wales. The reason for this is to be found in the case of Re G (a Minor) (Hague Convention: Access) [1993] 1 FLR 669 (Court of Appeal: 9th December, 1992). In that case the Court of Appeal held that Article 21 of the Hague Convention (which is incorporated into English law by Schedule 1 of the Child Abduction and Custody Act 1985) gives no power to a court to determine issues or make orders, and that, therefore, those wishing to apply for access must apply for a "contact order" under the usual domestic law provisions contained in section 8 of Children Act 1989.
A circular dated 5 March, 1993 (reported at [1993] 1 FLR 804) explains that the duty of the ICACU in access cases under the Hague Convention is limited to finding solicitors who are willing to act for the applicant and assisting them to apply for legal aid.
Once solicitors have accepted an applicant's instructions, the case will be conducted as if it were an ordinary application for contact under the Children Act. This means that no special priority is accorded to these cases and no special provisions are made for the fact that the applicant is overseas.
Although it is possible to make an application for contact under the Hague Convention to any level of court competent to deal with family proceedings, it is generally accepted that, because of their substantial foreign element, contact applications arising from Article 21 should be heard and determined in the High Court.
Costs
Except in a very few countries such as Australia and New Zealand, legal assistance is not available for access cases under the Hague Convention. Under the Revised Brussels II Regulation you will be eligible for legal assistance in the European Country in which your child is living if you have qualified for legal assistance in the United Kingdom and vice versa. This is set out in article 50 of the Revised Brussels II Regulation. No payment for legal costs is required for applications made under the European Convention. Legal assistance is not available in other countries unless you qualify under the domestic rules for the provision of legal aid in the country to which you are applying.