One parent can apply for a British passport for a child, but in many other countries both parents have to make the application. Often that includes personally coming to the appointment. For foreign parents living in the UK this can be a serious problem. I have had many such enquiries. Recently a mother contacted me (details anonymised):
My daughter is 6 years old and I am from Spain. The father has not been involved in her life for 5 years and I do not know where he is. The Spanish embassy says he needs to come to make the application for the passport or I need a court order. Can you help?
Here is what you can do:
- Check if you can get a British passport instead without the other parent’s involvement. Your child may in fact be British already. Many people do not realise that. If the other parent is British, your child is probably also British. Even if you are both foreign, your child may be British or can be British depending on your immigration status. It is worth getting advice from a specialist immigration solicitor. This could be worthwhile, not only if you want to travel soon but also for your child’s ability to stay in the UK post Brexit or in their own right once they are an adult.
- The problem is that the English courts do not have a specific order in statute law that provides for this because it is not an issue for British nationals. However, specific issue orders can be made. Another problem is that the English courts have no power to direct a foreign state what to do. So the Spanish consulate may ignore an order by an English court telling it to issue a passport. Therefore, it is vital for the consulate to confirm what exactly the order should say, preferably providing a wording. Since this is unlikely to be the first time the consulate in London has come across this, they should really know what wording they have accepted in the past. If not, they should think about it and have a pre-printed wording to hand to parents. If they are unresponsive or just direct the parent to a solicitor, we can suggest a draft or alternative drafts for them to approve.
- As with any court proceedings, the party against whom you make an application has a right to be heard. Therefore, you must send a copy of your application to the court to the other parent. If, as in this case, you do not know where the father is because he has not been around for several years, the court will still expect you to try to find him. The court would only allow you to go on with the application without the other parent knowing about it if you have done everything that is reasonable to try to find the other parent without success and can show the court.
- It may be possible that you can make an application in your home country to the court for an order in relation to this issue. This may be straightforward and cheap and may even bind the consulate to act. The jurisdictional issue is perhaps a bit uncertain here: Generally in the EU the courts of the country where the child is habitually resident have the power to make decisions about the child. However, if one regards this as a decision about the sovereign powers of the state to issue passports, it may be that the courts of the home country have powers to deal with the issue. It is worth checking this with a lawyer in your home country.
The UK and in particular London has an international and cosmopolitan population, with many bi-national couples, not least due to free movement of citizens in the EU. On separation and divorce issues sometimes arise when one parent wants to move back to their home country with the child and the other parent does not agree. In those cases the court will need to decide on the relocation application, often called leave to remove the child out of the jurisdiction.
I have had enquiries in recent weeks from parents who are thinking over their future and their children’s futures after the Brexit referendum outcome in June 2016. Some wonder how long they can stay living in England and Wales and want to move now because they fear they may have to leave in a couple of years. Others want to move abroad with their children now, so that their children can experience an international upbringing while this is still possible in the EU.
Most strikingly, Sterling dropped against the Euro by 20% as against the exchange rate at the end of 2015. The effect on property prices in the UK remains to be seen. There are issues which can make practical arrangement in relocation cases easier or more difficult as a result of the referendum outcome and, if and when it happens, Brexit, including:
- The Sterling fares for flights and Eurostar trips are likely to increase, either because the company bases their fares in Euros and/or because fuel is based in US Dollar.
- Buying property in Europe will be more expensive for UK migrants as a result of the drop in Sterling.
- Maintenance payments for children paid from the UK will not go as far in Europe as they used to only a few weeks ago.
- It may not be clear if British Citizens will be able to stay abroad post-Brexit and if so in what circumstances. Equally, EU citizens in Britain may not be able to stay here and should consider their situation now – either by applying for permanent residence and/or citizenship or by considering when is the best time for their child to move countries.
- UK citizens and EU citizens moving back to their own country may not be able to use the EHIC card to obtain free or subsidised health care abroad and may need to take out private health insurance from the start post-Brexit, something that makes emigrating to the US expensive.
So while there are a lot of uncertainties and issues to come if and when the UK leaves the EU, some parents may want to consider their situation now and obtain legal advice to find the best way to face what may happen head on.
As I’m sitting on a Eurostar train to Brussels, this is a good time to reflect on what Brexit means for family law in England. It is of course important to bear in mind that until the UK actually leaves the EU, all EU law continues to apply in full and even after that, all or some may apply.
There are two main pieces of EU law which are important for family law:
Brussels II: This regulation provides where you can start a divorce in the EU and where you can start proceedings about children. Wherever you have started a court case first, it stays there. So there can be a race to the court. Since English courts apply English law to divorce and financial matters and also to cases about arrangements for children, the outcome of a case in the courts in England can be very different to the outcome in another country. Don’t forget though that the other country may well apply English law to all or some of the aspects of the case. So for example in a recent case the couple are both German and live in England. The husband started a divorce in Germany and the German court applies English law to the divorce itself and also to child and spouse maintenance, but not to the sharing of assets. You need specialist advice on these matters from both (or all) possible countries where a divorce could be started.
For child arrangements the courts of the country where the child is habitually resident usually have jurisdiction. It also makes some additional provisions to strengthen the Hague Convention on Child Abduction for the EU, such as targets to deal with cases in a certain time.
After Brexit, the UK might enter into a treaty with the EU to continue the provisions of Brussels II or it might not. My guess is that it would not want to be seen as a friend of child abductors, so the pressure to enter into an agreement that apply the provisions on children cases to the UK is strong. It is not so strong on the divorce side.
Maintenance: The EU provisions for maintenance regulate where you can start a case and once you have a judgment how to enforce it in another EU country. There is already a treaty to apply very similar provisions to Switzerland, Iceland and Norway, the Lugano Treaty. So on this one, my guess is that Britain might simply become a signatory to the Lugano treaty too.
Aside from the law, and whether or not Brexit is ultimately going to happen, the immediate effect is that we cannot be certain about house prices and that Sterling has seen a drastic drop. So in any financial cases where there are assets in several countries, the comparison of the valuations is going to be difficult: If the parties (and the court) think that the exchange rates are going to recover in the medium to long term, they could take historic exchange rates from earlier in 2016. Unfortunately, since one exchange rate is going to favour one party and another the other party, this could all become contentious. This does, of course, not only affect the Sterling-Euro exchange rate, which was at €1.50 at the end of 2015 and now is below €1.20, a 20% drop, but also the Sterling-US-Dollar exchange rate and any other currency linked to the dollar or Euro in some way. Some parties might want to put financial negotiations on hold until there is certainty.
Where there are assets such as real property or shares where a current valuation is impossible to obtain, it might also be wise to wait unless it is clear an asset will be sold and the proceeds be shared equally. In that case it is just a matter for the parties to agree on the time of sale.