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David Hodson on International Family Law: No CSA deal, no relocation

Date:10 FEB 2012

International Family Law Practice by David Hodson

David Hodson

This constitutes a simple plea for all international families: Don't agree any final relocation without sorting out and implementing the child support arrangements. In effect the plea is a warning to fathers, the invariable left behind parent and the child support paying party. Never agree to a relocation of a child abroad without being absolutely certain and putting into place the child support obligations after relocation. Many fathers have been bitterly distressed that their child has gone abroad with the other parent against their preferred wishes and thereby mostly out of their lives and any meaningful parental involvement. They then find they are hammered for child support from abroad in ways which were never expected and possibly contrary to what was agreed on relocation.

My firm (iFLG) receives many enquiries about this issue. It is not just about money. It often creates a deep rift in parenting arrangements and sometimes results in the father having even less or no involvement in the child's life - which is against the child's best interests. How does it arise?

At the time of the parental separation or more often a few years later, when the father has good contact and is paying good child support, the mother decides to relocate abroad and wants to take the child. Perhaps the father recognises with sadness that this is best for the child or he is advised that his prospects of defending a relocation by a primary residential parent are not great and certainly will cost tens of thousands of pounds which he knows the family cannot afford. So to much sadness, he concedes she can go. But very often he agrees informally (sometimes in writing and sometimes tacitly) that the mother will not then claim child support, eg to recognise the costs of travel by him to see the child at some distance abroad.

The mother and child moves and often for a couple of years this is what happens. The father sees the child much less often and the parent child relationship invariably deteriorates - and no child support is requested. But too often in our experience of such cases, after a couple of years the mother decides to seek what she considers or is advised she is entitled to namely normal levels of child support. I am sure there are a few mothers who dishonestly agree to a relocation on the basis of promises they have no intention of keeping - which is why conditions of relocations have to be tied up strongly as a few mothers have caused distrust in all cases. Mostly however they are mothers who a couple of years after relocating realise they are entitled to claim from the father and do. And here the major repercussions hit.

Unlike the English CSA which has no jurisdiction when a parent is abroad, there are CSAs around the world which not only have jurisdiction to pursue non paying fathers around the world but also have a policy of doing so. Some seem quite vicious in the time and costs they will expend.

The problem is that just like the English CSA, they will ignore any agreements reached about child support at a time of a relocation even if in writing and their calculator will ignore the costs of contact, which may be several thousands of pounds annually and be as great as the assessed child support.

Suddenly the father finds himself faced with having lost the child in the relocation and now facing high child support costs (often with massive arrears built up before any real consideration of the issue occurs) and also unable to afford to travel to see the child so all contact ceases. Pleas to such CSAs to take account of the costs of contact or of agreements reached have little or no impact at all - CSAs have no discretions. So proceedings occur through reciprocal enforcement in England and eventually the CSA gets their man. And sometimes his house! In one litigated case a couple of years ago after an informal agreement of no child support for an agreed relocation, the father had to sell his house from the divorce settlement to pay the very large CSA arrears and still afford to continue to see his children abroad which he stated was his top priority in life.

Unfortunately it gets worse. The father is in dispute with the foreign CSA, perhaps about what was originally agreed or the precise calculation. He travels to the country to see his child for contact. Some foreign CSAs have considerable Border Control powers; much greater than the English CSA. So the father may find himself apprehended as he tries to enter, or even worse as he tries to leave with permission refused until he has paid up to total claimed even if disputed by him. England may have abolished the Debtor's Prison in the nineteenth century where debtors resided until they could pay their debts, but it still exists in the form of some foreign CSAs. So well advised fathers in CSA disputes don't travel to see their children for contact for fear of being detained. It has had wider consequences. Anecdotally a leading figure in a UK public body was invited to be a key note speaker at a major foreign conference where co-incidentally he had a dispute with the local CSA. The organisation could not risk either his non-return or the potential publicity and withdrew altogether. Anecdotally a major rock band avoided a certain county on a world tour for fear of a band member being held by the CSA over disputed child support. It is not just the children who suffer.

What is the answer? Never agree any relocation without taking specialist advice - these issues may come back to haunt the father later. Any conditions about relocation must be in writing, invariably in a court order and often made into an order of the court where the child is relocating before the relocation occurs - afterwards it is often too late as the country where the children then live will have exclusive jurisdiction. Always agree who will pay the cost of travel for contact throughout the child's minority, and from what resources. And always include child support in these arrangements - what will happen if the mother seeks local CSA to which she may be entitled in law?  Face the possibility and deal with it in advance. Perhaps obtain an order in the courts of the country where the child is moving that there will be no claims for child support. Take some security in exceptional cases. In response to the claim that this is not about the child's relocation arrangements, this is all about the child because if the father cannot afford to travel to see the child, possibly also losing his home etc, then the child suffers.

Always sort out the child support arrangements before agreeing a relocation.

 David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new forthcoming major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.