International Child Contact

What International Child Contact Covers

Contact across borders takes three forms: visits to the country where the child lives, trips by the child to the other parent's country, and indirect contact by calls, messages and video. In England and Wales the court deals with all of these through a child arrangements order, which section 8 of the Children Act 1989 defines as an order regulating with whom a child is to live, spend time or otherwise have contact, and when.

Two treaties sit behind the domestic law. The 1980 Hague Convention lets a parent apply through central authorities to organise or secure the effective exercise of rights of access, its term for contact. The 1996 Hague Convention decides which country's authorities have jurisdiction and provides for their orders about contact to be recognised and enforced in the other Convention countries; it applies to children until they reach 18.

The Lord Chancellor is the central authority for England and Wales under the 1980 Convention and for England under the 1996 Convention (the Welsh Ministers for Wales); in England the work is done by the International Child Abduction and Contact Unit (ICACU), whose GOV.UK form covers applying to make contact with a child or to enforce a court order overseas. A child taken abroad or kept there without consent is an urgent matter covered on our international child abduction page.

Which Court Decides and the Welfare Test

The starting point is where the child lives. Under Article 5 of the 1996 Convention the authorities of the country where the child is habitually resident have jurisdiction, and jurisdiction moves with the child's habitual residence. Section 2 of the Family Law Act 1986 applies that rule here; where the Convention does not apply, the court may make a section 8 order only if the child is habitually resident here, or present here and not habitually resident in any part of the United Kingdom, with separate rules where divorce or civil partnership proceedings are continuing. Where two countries' courts could act, see our jurisdiction and forum disputes page.

So a parent abroad who wants contact with a child living in England and Wales applies here, and a parent here whose child lives abroad usually applies in the child's country. Where the child lives here, section 1 of the Children Act 1989 governs: the child's welfare is paramount, and the court must presume, unless the contrary is shown, that each parent's involvement will further the child's welfare, provided that parent can be involved without putting the child at risk of harm. Involvement may be direct or indirect, so an order can provide for video calls and messages as well as visits.

Section 11(7) lets the court attach directions about how an order is carried into effect and conditions the people named must comply with: who travels, who holds the passports, the dates and handovers, and what happens if a flight is missed. A trip by the child to the other parent's country also needs the permission of everyone with parental responsibility or of the court, which our taking a child abroad page covers.

Recognition and Enforcement of Contact Orders

Between countries party to the 1996 Convention, a contact order made in one is recognised by operation of law in the others under Article 23, and recognition may be refused only on the grounds the Convention lists, such as a lack of jurisdiction or a manifest conflict with public policy. Under Article 26 the other country must declare the order enforceable or register it under a simple and rapid procedure, and under Article 28 it is then enforced as if it were that country's own order, under local law. The HCCH status table for the 1996 Convention lists the countries bound by it.

In England and Wales the procedure is in Part 31 of the Family Procedure Rules: any interested person may apply to a district judge of the principal registry for a foreign order to be registered, recognised or not recognised, and registration serves for the purposes of Article 24 as a decision that the order is recognised. The court will not enforce a registered order until the time for appealing has passed, unless urgent enforcement is necessary to secure the child's welfare.

Under Article 35 one Convention country's authorities may ask another's to assist in securing the effective exercise of rights of access and regular direct contact, and a parent living in a Convention country where the child does not live may ask the authorities there to gather evidence and make a finding on that parent's suitability and the conditions for access, which the court deciding the case must admit and consider.

Under Article 21 of the 1980 Convention a parent may apply through the central authorities to organise or secure the effective exercise of rights of access. Article 21 confers no jurisdiction to decide access or to enforce a foreign access order (Re G (A Minor) (Hague Convention: Access) [1993] 1 FLR 669, recorded in the practice note annexed to Practice Direction 12F), so on an incoming application ICACU arranges solicitors to apply under section 8 of the Children Act 1989.

Where the other country is party to neither Convention, recognition depends on its own law. The Foreign, Commonwealth and Development Office guidance lists the options: agreement with the other parent, specialist mediation, or proceedings in the courts abroad to have the order made here recognised or to obtain a new local order, with advice from a lawyer in that country.

Evidence and Common Problems

The court needs a concrete proposal: dates and lengths of visits, where the child will stay, who pays for travel, how school terms and time zones are handled, and how indirect contact runs between visits. Section 1(3) requires the court to consider the child's ascertainable wishes and feelings in the light of their age and understanding.

Problems that come up again and again:

• fear that a child taken abroad for contact will not be returned: the court can attach conditions under section 11(7), a prohibited steps order can restrict removal, and section 37 of the Family Law Act 1986 lets a court that has made an order restricting removal require the surrender of the child's United Kingdom passport
• an order silent on practical detail, which a foreign court cannot readily enforce
• a visiting parent who needs permission to enter the United Kingdom: an immigration question, covered on our standard visitor visa page
• a child whose whereabouts are not known, where section 33 of the Family Law Act 1986 lets the court order anyone it has reason to believe has relevant information to disclose it
• allegations of domestic abuse, covered on our domestic abuse and child arrangements page; if anyone is in immediate danger call 999, and the National Domestic Abuse Helpline is 0808 2000 247

How an International Contact Application Works

1. We confirm which country's court has jurisdiction under Article 5 of the 1996 Convention and section 2 of the Family Law Act 1986.
2. Unless an exemption applies, the applicant attends a mediation information and assessment meeting; our MIAM advice page explains the exemptions.
3. Where the child lives in England and Wales, we issue form C100 in the family court. A parent in a 1980 Convention country may instead apply through their own central authority to ICACU under Article 21.
4. Where the child lives in a 1996 Convention country, we prepare the evidence for the court there with a lawyer in that country and, where useful, ask for an Article 35 finding here on your suitability and the conditions for contact.
5. We draft the directions and conditions under section 11(7): dates, travel, passports, handovers, indirect contact and what happens if arrangements break down.
6. Where an order must work across the border, we apply under Part 31 to register an incoming order, or ask for an order made here to be recognised in the other country under Article 24 before contact abroad begins.
7. If an order is broken, enforcement runs under the law of the country where the child is; here that means the family court's powers, covered on our enforcing a child arrangements order page.

When Legal Advice Is Especially Important

Advice matters most where:

• the other country is party to neither Hague Convention, so an order made here has no treaty route to enforcement there
• you are being asked to agree to contact abroad and want the return secured first
• you hold a contact order from another country and the parent here is not complying with it
• proceedings about the same child are running in two countries at once
• immigration status affects whether either parent can travel
• the child has been kept abroad after a visit, which is a possible wrongful retention rather than a contact case

How RakLAW Solicitors Can Help

We advise on cross-border contact from 42 Shad Thames in Southwark, near Tower Bridge, as part of our international family law work, for parents in England and Wales and for parents abroad who instruct us directly. The firm was founded by solicitor Rakesh Prajapati. RakLAW Solicitors is privately funded and does not do legal aid work.

We say at the outset whether the country involved is inside or outside the Conventions and what that means for enforcement, and we draft orders with the practical detail a foreign court can act on. Our charges are on our family law fees page. To discuss your situation, book an appointment or call 0203 345 2000 for a free 15-minute consultation.