Can my ex stop me taking my children out of the country? « McAlister Family Law

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Can my ex stop me taking my children out of the country?

Melissa Jones

26.08.2020

Heidi Klum and ex-husband Seal are at odds over her plan to bring their four children to her native country of Germany later this year to film Next Top Model. He has cited concerns around COVID-19, but perhaps more seriously has, in court documents allegedly obtained by media outlet The Blast, claimed his ex-wife’s true intention is to move there for good.

Seal, whose real name is Henry Olusegun Adeola Samuel, is now asking the courts to deny Heidi's request to take their four children to Germany in the fall. The case is to be heard on 28 August 2020. Associate Melissa Jones explains how such a situation might be handled under English and Welsh law:

What will the court consider?

"It is important to consider the context of Mr Samuel’s objection. Together with his filing, the 57-year-old singer included an email from March 17, 2020, where the 47-year-old supermodel claims she is looking for a home in Germany to keep their three youngest children safe.

'I believe Heidi has a hidden agenda to move the children to Germany,' Seal claimed in the documents, according to the news outlet.

“If one parent wants to take a child abroad, whether permanently or temporarily, the other parent with parental responsibility needs to consent. Anybody with the benefit of a child Arrangements Order (for the child to live with them) can remove the child from England and Wales for a period of less than one month without the consent of the other parent with parental responsibility.

“The impact of Covid-19 has been worldwide, and many parents have resigned themselves to the inevitability of forgoing travel abroad until the virus has subsided or the risk is reduced. But some parents consider the risk too high, and they are within their rights to withhold their consent to travel abroad.  If an agreement cannot be reached and a parent fears the other parent will travel regardless, they can apply to the court for a Prohibited Steps Order.

“The issue of an underlying motive – wishing to move the children permanently to another country – would have to be proved.”

What to do if the court refuses the holiday

“If this case was being decided England and Wales, the court’s view would be that the welfare of the child is always paramount. However, there is no presumption in favour of the applicant parent. The court may need to scrutinise the proposals by Ms Klum and be satisfied those proposals are reasonable and in the children’s interest. It will also have to weigh up Seal’s concerns about the safety of the children and, although short term, the denial of contact in the meantime. That said, Ms Klum, has been clear that he can travel abroad to Germany to see the children.”

What to do if the court agrees to the holiday

“If the court states that Ms Klum can indeed travel to Germany for the period she seeks, then an order would be draw up approving this, effectively resolving the matter. I would expect the order to be time-limited and for it to be clear when the children will be returning home. Anything else otherwise would be a breach of the order.

“If this case was being heard in England and Wales, it would be considered a temporary removal from the jurisdiction – especially considering legal precedent with the case of Re A (Temporary Removal from the Jurisdiction) [2004] EWCA Civ 1587, which delivers the clear message that any decrease in contact must be temporary.

“I’d suggest that since this is a short trip, the court may be persuaded by the limited time period, especially when the mother is not trying to change the children’s residence, but simply go abroad for work purposes.  Of course, if travel restrictions are put in place because of Covid-19, preventing a return to the States and forcing Ms Klum and her children to spend longer in Germany, Seal may need to take court action once more if he can’t come to an agreement with his ex-wife.

The reality is that Ms Klum may need to travel to Germany for work and leave the children in their current home, with care provided.”

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