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Original poster

Legal advise on returning to the UK with my child.

34 replies

Snowoctopus · 04/10/2020 04:42

I am living overseas with my partner and child. The relationship is not going well and I am unsure if it can be repaired at this stage... he has been very controlling and emotionally and verbally abusive.
I cannot remain here if the relationship ends and it seems that my only option will be return to the UK with my 3 year old son.
Where do I stand legally if I do this? Ideally I’d like my partner to move back too and be involved in our son’s life but I fear that he will launch an international custody battle and ultimately remove my son from
me. If it’s relevant I’ve been the main carer since birth. The last thing that I want to do is to take my wee boy away from his Dad but it’s getting so bad that I feel I am left with no choice.
My visa will be invalid if the relationship ends... I cannot stay here with him any more. It’s so toxic.

OP posts:
spottybitch · 04/10/2020 04:43

Which country are you in ?

Ohthepressure · 04/10/2020 05:02

The Hague Convention applies in some countries meaning that another Hague signatory (eg the UK) can force the return of a child who has been habitually resident there. It very much depends how long you've been there, what visa you and DC are on etc. You ought to get proper advice about your options.

occa · 04/10/2020 05:06

Depends what country you're in, what citizenship your DS has, how long you've lived there etc.

You need local advice.

Florencex · 04/10/2020 07:00

Impossible to advise based on the limited information provided. As a minimum you need to say what country you are in, what citizenship you are of, what type of visa you have, same for the child.

Original poster
Snowoctopus · 04/10/2020 07:18

Thank you for the replies. Yes, I plan to get advice here too but wanted to ask here too in case anyone has been through something similar.
I am British and so is my son. My partner is a New Zealander. We are in NZ. My son and I are on 2 year visas linked to my partner... so as far as I can find out my visa would become invalid if he ends the relationship. My son has a British passport, not a Kiwi one.

OP posts:
Original poster
Snowoctopus · 04/10/2020 07:19

We have been here for a bit less than a year... we were previously in the UK.

OP posts:
AlwaysCheddar · 04/10/2020 08:02

Could you not fly home to see a ‘sick’ relative and stay? Probably too easy so see a solicitor.

DianaT1969 · 04/10/2020 08:34

This is the webpage your partner will visit if you leave with the child and he wants to take action.
www.justice.govt.nz/family/care-of-children/get-a-child-returned-to-nz/
It would appear that if you go to a Hague convention country the process for him would be smoother than if you go to a non-Hague convention country.
What would you like to do? Split up but stay and work in NZ? In which case you should pursue those avenues. Split up but both settle in the UK? Is he likely to want that?

Familylawsolicitor · 04/10/2020 08:51

This reply has been deleted

Message withdrawn at poster's request.

Original poster
Snowoctopus · 04/10/2020 09:05

Thank you so much for the help and advice. I really appreciate that.

OP posts:
SoloMummy · 04/10/2020 09:07

Does your child have a British bc and passport?

Xenia · 04/10/2020 09:09

Take advice from a lawyer in NZ before you take the child out of the jurisdiction or you might lose your child as it could be a Hague breach or get a NZ court order allowing him to be taken back.

FelicityPike · 04/10/2020 09:09

You need a NZ lawyer. I doubt you’ll be able to return with your son without permission from dad OR a court order.
I’m sorry but I think this will be incredibly difficult.

spottybitch · 04/10/2020 10:17

The issue of domicile applies in NZ law when you are having the dissolution (not divorce in NZ) of a marriage, the domicile act gives the child the same domicile as his/her father if the parents live together.
What the court will look at is the benefit to your son of removing to the UK, is he better served being in the UK than in NZ.

MarriedtoDaveGrohl · 04/10/2020 10:24

NZ is one of the worst. They actively stop parents taking children abroad to live. Act quickly and with the help of a good solicitor.

spottybitch · 04/10/2020 10:39

@Snowoctopus is your son on your visa? You need to get legal advice as his father is entitled to apply for a dependent child residents visa as he's living in NZ.

MarriedtoDaveGrohl · 04/10/2020 10:46

Some links that may be of use
www.justice.govt.nz/family/care-of-children/stop-a-child-leaving-nz/
www.justice.govt.nz/family/care-of-children/get-a-child-returned-to-nz/

www.govt.nz/browse/family-and-whanau/separating-or-getting-divorced/child-custody/

As you can see it's very much assuming the child had been 'kidnapped' from a parent. A very odd mixture of super woke but no acknowledgement of a mother's rights.

What would work best is finding a women's rights orientated group that knows the loopholes - a normal solicitor is likely to just say you can't legally do it. Someone who understands this situation will tell you that in theory you can't but... and then show you how.

Also getting leverage over your STBX is crucial. If he is going to have to pay you a lot of money to split (and the law in nz is different regarding unmarried couples) and hefty child maintenance he may feel differently

But equally it seems as if he needs to apply for an order preventing the children from going so doing it quickly before he gets a chance would be a risky but possibly successful move.

If you can get his agreement to bring the child here for a holiday (invent a dying parent?) then stalk perhaps. Also a European country that is not sympathetic to fathers trying to extradite their children to nz could be a good half way move. Sure they are part of The Hague convention. In practice we all know some countries work differently.

MarriedtoDaveGrohl · 04/10/2020 10:57

So your child is 3 and has a British passport plus you are both on visas? The law saying he can be brought back there requires him to be habitually resident there before being taken out. Which he is.

However if you can get him out and keep him out for 1 year you will probably be ok.

The law is a bitch. There's a million ways of doing the same thing and only those that are involved in these cases know how they are done. If there's no one here that's been through this then we are all just speculating- and only a very good solicitor (maybe even a UK one. Not sure nz solicitors are in the business of helping people escape) will really know.

SoloMummy · 04/10/2020 12:03

If your son is 3 and you've been there less than a year, arguably that's not his habitual home.... The other 2 years were in the UK.....

spottybitch · 04/10/2020 12:13

OP would struggle with it not being his habitual home because NZ law says the habitual home is the one he lives in with his father.

Xenia · 04/10/2020 13:15

Marriedto - or "one of the best" even if we all think a parent should not remove a child from the other parent.

Original poster
Snowoctopus · 05/10/2020 01:22

Thank you all so much for your help. I think I have to somehow try to get the relationship to a good enough place for him to agree to move back to the UK, then if things unravel in the future at least my son and I will be home and not stuck on the other side of the world...
Otherwise I really don’t know what I am going to do.
I will seek legal advice and just wanted to thank you all again for all of your helpful replies.

OP posts:
MarriedtoDaveGrohl · 05/10/2020 01:52

@Snowoctopus as long as you can get him to agree to take the child out it should be ok. Do it on the pretence of a sick parent if you can? Then stall and finally say you want him to move back to the UK. He won't and hopefully that should be that as long as you agree to contact and he can come and see his dc here.

It will still take an Oscar award winning performance especially as a) we are heading into winter and it's Covid central. But the longer you stay the worse it will be. See a UK solicitor online and find out what you can do.

MrsTerryPratchett · 05/10/2020 02:26

You do also need to check with a good immigrant advice charity there about abuse and visas. Some countries are very good about not requiring women to stay with abusive men to stay in the country and some aren't.

sunbunnydownunder · 05/10/2020 02:45

I know someone who went to New Zealand with her then kiwi partner and British born child. NZ law sees the child as habitually living there as soon as they move permanently to the country. The relationship fell apart and she stayed as long as she could then took the child home for an agreed visit and didn't take her back. He evoked the Hague convention and the child had to go back to NZ. It didn't matter that he was the less suitable parent, in the eyes of NZ law she was a kiwi and needed to stay there with her father.