Placing children with family members abroad

There are many reasons why a parent may not be able to look after their child. This could be because the child’s parents have died, gone to prison or they are hospitalised for a long time.

In other circumstances, it may not be appropriate for the child to stay with their parents anymore; for example, if the parents have problems with drugs or alcohol, are involved in abusive relationships, or they are neglectful or lack capacity.

If a child cannot be cared for by their parents, for whatever reason, wider family members such as sisters, brothers, aunties, uncles or grandparents, will often step in. Sometimes close family friends will also step in. This often is referred to as kinship care.

A child should remain with extended family, or those individuals with which they already have a close and personal relationship, rather than individuals not already known to the child, if at all possible. This is to provide stability in an existing family network to ensure the child’s identity and family connections are maintained.

There are different types of kinship care and the legal rights, responsibilities and the support you can receive will depend on your specific circumstances.

However, when a child’s extended family members are residing in another country, this can add an additional level of complexity.

What additional considerations might be involved in placing children abroad rather than within the UK?

Local authority involvement in both countries

The relevant country overseas will likely have the equivalent of the UK’s local authority dealing with safeguarding of children cases.

Each country’s relevant authority may be called something different, such as Social Services, The Department of Children and Family Services, or The Office of the Children’s Lawyer, etc.

There should be collaboration between the relevant authorities in both jurisdictions on a frequent basis. It is likely there will be information sharing to include background and safeguarding information. There should be collaboration between the professionals during any assessment process.

If the child is being placed with a kinship carer who lives in another contracting state to the 1996 Hague Convention, that local authority may need to be consulted as the relevant overseas competent authority. The competent authority may need to conduct its own assessment of the placement of the child. The UK Central Authority should be consulted at an early stage in these types of cases.

Immigration issues

Where a child is to live abroad under a kinship carer arrangement, it is important to consider the nationality and immigration status of the child at an early stage.

Obtaining birth certificates, visas and passports will be necessary. Where any party to proceedings is a foreign national, or where immigration status is unclear, a request to the Home Office should be made to clarify their immigration status.

There may be additional issues in obtaining visas where the kinship carer is not a national or permanent resident of the country they are living in overseas. For a child to remain with the proposed kinship carer in in that country may mean they need to be added to a work permit or residence permit, which may not be possible under a kinship arrangement other than international adoption. This may add an additional complication as adoption extinguishes any parents’ legal rights over the child.

Language barriers

If the country that the child is moving to speaks another language from that which the child speaks, consideration needs to be given on how the child will settle in to the new country.

In addition, court papers will have to be transcribed and the use of interpreters may be required in court proceedings.  

Time difference and engagement in court proceedings

The court will take into account the time difference in the overseas country where possible. However, the court system in the UK is likely to only hold court sessions between the hours of 9am – 5pm GMT.

The UK court system is well versed in remote hearings, but attendance may be required in person for important hearings.

All UK proceedings will be audio recorded, but transcripts will have to be requested if needed, as these are not automatically produced.

Service of court documents

Serving documents overseas can be different from serving documents in the UK, and so the overseas countries’ rules and regulations on service need to be considered.

Formal service can sometimes take time overseas and in some circumstances it may be appropriate to make individuals aware of proceedings in a quicker manner, such as email. However, service is a complex area of international law and you should seek legal advice on this issue.

Recognition of UK orders

Not every country recognises the UK judicial system, and whilst a UK judge may make an order, the court in the overseas jurisdiction does not necessarily have to adhere to it, and could refrain from recognising it and make another court order entirely.

Specialist legal advice about the recognition and enforcement of any order, and the ability to mirror such an order should be sought. This may include seeking legal advice in both jurisdictions.