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I am new to the site an wanted to know if anyone has any experience or advise of this?
My wife and i divorced in September 2008 and as part of the divorce settlement there was an a court document of arrangements for children stating that I would have my daughter (who is 7 years old)2 nights per week. She has since remarried and moved to Germany with our daughter and her new husband (who is in the forces), with the agreement (unwritten) that they would return at least once a month for at least a weekend. This has failed to happen and I wish to know where I stand legally as to having more access to my daughter and if indeed her relocation to Germany is legal. We were married when our daughter was born and I have full parental responsibility.
On the two occasions that my daughter has been home she says that she wants to stay with me here in England.
Thank you in advance
Andy Taylor
Hi Andy.
As far as i am aware and have been told: as you have full PR to your daughter your ex wife needs written consent to take your daughter out the country.
If you go and seek legal advice the solicitor will contact her and advise her of this. Also your daughter has said she wants to stay with you in England, depending on her age the courts will take this into consideration and may rule in your favour for her to stay with you full time, BUT that only comes into consideration once CAFCASS have done a report ect.
Hope this helps mate.
HI Andy
Thanks for posting this question. We will get one of our experts to post an answer for you. The expert we will contact is based at the Childrens Legal Centre.
Dear Andy,
Thank you for contacting the Children’s Legal Centre, an independent charity concerned with law and policy affecting children and young people.
Unfortunately the ‘Arrangements for Children’ which was agreed upon in your divorce is not legally binding and can not be enforced if your ex partner does not comply with what was agreed.
As you consented to your ex partner taking your daughter abroad (even unwritten) then this is legal, and although you could speak with a solicitor, it is likely to be very difficult for you to have your daughter returned as you did consent to her going.
No agreement with regards to contact with children is legally binding, even when agreed using solicitors, unless it was put into a court order. Either parent is able to differ from what was agreed at any time.
In order to gain a contact order for your daughter, you would need to apply to the courts in Germany, as that is where your daughter is now resident, and the English courts have no jurisdiction over people residing in other countries.
The German courts would follow any procedures they use and would decide whether or not to grant you contact with your daughter and if so, where, when and how often this should be.
If you wish for your daughter to live with you, then again you would need either the mother’s consent or to apply to the courts where your daughter is resident. It could be quite difficult to have your daughter’s residence changed as she is established as living with her mother, however this would be something for the German courts to decide.
Under English law, the wishes of a child and where they want to live will not be overriding until they are 16 years old, although their opinion will hold more weight from approximately 13 years old and above (depending on the maturity and understanding of the child), the court will still have the final say as to what is best for the child and will make any orders they feel appropriate, even if this is against what the child wants.
Firstly, we would suggest that you and the mother try to come to an agreement that suits you both with regards to contact arrangements. If this is not possible then we would advise that you attempt to find a solicitor who is familiar with German law and procedure, this may have to be a German solicitor who speaks English rather than a solicitor based in England.
You may also be able to gain some further advice from the British Embassy in Germany regarding the law surrounding these issues in Germany. There are several embassies in Germany and to gain details of these you should visit www.fco.gov.uk and select the find an embassy section.
We hope this information is useful to you. Should you require further information or have any questions, please contact our Child Law Advice Line on 0845 120 2948.
Kind Regards
Children’s Legal Centre
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