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Family law guidance for athletes - dealing with continuing disputes over children

Posted: 25/08/2022


This article was originally published on leading sports law website LawInSport in August 2022.

This is the fifth in a series of articles exploring key family law issues facing athletes over the course of their careers. The last article looked at how families and the English courts approach arrangements for children following the breakdown of a relationship. Here, we consider a few of the issues that can arise after separation when a couple have moved to a co-parenting relationship, which include the following questions:

  • I want to send my children to a great new school but my ex doesn’t agree. What can I do?
  • My ex wants to change the children’s surnames, but I do not agree. Can I stop them?
  • I need to move abroad for work, and I want to take the children with me. Do I need my ex-partner’s agreement?
  • My ex has taken the children abroad but is refusing to bring them home again. What can I do?

Child arrangements and ‘Parental Responsibility’

Co-parenting after separation can be challenging, particularly at the beginning. It is not unusual for there to be a level of conflict surrounding key decisions about a child’s life, for example, where they will go to school, if they can go abroad either for a holiday or even permanently, their religious upbringing, and medical decisions. This can be particularly relevant for athletes or sports people who travel frequently with their children or whose children live and spend most of their time with the former spouse due to work commitments.

When it comes to making key decisions for a child, anyone with Parental Responsibility1 must be consulted and have their say before action is taken. Parental Responsibility means the legal duties, powers, responsibilities and authority a parent or carer has for a child and the child’s property. Who has Parental Responsibility is an important question. In many cases both parents have parental responsibility, although these examples show this is not always the case:

  • A birth mother automatically has Parental Responsibility for a child regardless of whether the child is biologically hers e.g. if she is a surrogate, although that is a separate article all together…).
  • A biological father does not have automatic Parental Responsibility unless he was married or in a civil partnership with the mother at the time of birth, they subsequently married or if he is named as the father on the birth certificate.
  • The position for same sex couples becomes more complex. In the case of female same sex relationships, the mother who does not give birth will have Parental Responsibility only if she is married or in a civil partnership with the birth mother at the time of conception via artificial insemination at a licensed UK fertility clinic. If the parents are not married and/or the child was conceived ‘at home’ i.e. through sexual intercourse with a man or in a non-licensed fertility clinic, the mother who did not give birth will not automatically have any rights to the child.

In circumstances where Parental Responsibility is not automatic, it can be obtained via an application to court for a parental order, a parental responsibility agreement with the birth mother or a child arrangements order specifying where the child will live. The law governing parental rights can be complex, particularly if conception has involved fertility treatment or donor eggs/sperm. It is important to take legal advice and ensure that the right legal arrangements are in place for a family.

I want to send my children to a great new school but my ex does not want my children to go to that school. What can I do? 

Assuming both parents have parental responsibility, both parents must be consulted and have a say in any key decision about a child’s life. Neither parent should make decisions such as changing a child’s school, without the knowledge and agreement of the other parent.

If you disagree about schooling, we recommend first working with a mediator. A mediator will meet with both of you and help you to see each other’s point of view and hopefully reach an agreed way forward that is best for the child. Organisations such as Resolution2 or Relate3 can help you find a suitable mediator.

Sometimes, despite the best intentions, mediation does not lead to a solution. Many sports people are required to travel for work, making the location of the child’s schooling very important as it can impact one parent’s ability to spend time with a child. Some parents have strong views on boarding schools or education abroad. This can be a very sensitive issue for many families.

If you cannot reach an agreement, you have the option to apply to court for a Specific Issue Order (SIO)4 and ask a Judge to determine which school your child will attend. If this proves necessary, the court’s primary consideration will be which outcome is in the child’s best interests. When the child is older, the court will want to hear their voice and which school they themselves would like to attend. The child’s voice will have a strong weight although it may not be determinative as there are other factors to be taken into account when considering the child’s overall welfare. The court will likely appoint an officer from the Children and Family Court Advisory and Support Service (CAFCASS) (or the parties can choose to appoint an Independent Social Worker to carry out the same function at personal expense) to meet and speak with the child and ascertain what they want. The officer will then prepare a written report for the court conveying the child’s views and making a recommendation for how the case should be decided.

Parents can apply to court for SIOs if they cannot agree on other key decisions. For example, if a child should be vaccinated or receive certain medical treatment. In the event of a dispute between parents about whether or not a child should be vaccinated, the court will make a welfare-based decision, taking account of the parents’ views and the ascertainable wishes and feelings of the child (where appropriate). In the case of a vaccination that is part of an ongoing national programme approved by the UK Health Security Agency, such as the Covid-19 vaccination, the court is likely to order that the vaccine should be given.

The family court is under extreme pressure which often leads to delays in its process. In time sensitive cases such as schooling, holiday, or medical care disputes, we often advise families to consider arbitration. Arbitration offers parents a private and flexible forum to resolve their dispute without going to court. The arbitrator’s decisions binds both parties as does the court’s.

My ex wants to change the children's surnames, I do not. Can I stop them? 

It is not uncommon for one parent to want to introduce their own surname into a child’s name or to remove the surname of the other parent, particularly if the marriage breakdown was acrimonious. As is the case with schooling and medical decisions, name changes are a key decision which should only be made after consulting with the other parent.

If you have tried mediation but have been unable to reach an agreement and your former partner continues to threaten to change your child’s name without your agreement, you can apply to court for a Prohibited Steps Order (PSO)5. If you are successful, the PSO will prevent the other parent from changing your child’s name or referring to them by that name.

I need to go abroad for work and I want to take the children with me. Do I need my ex-partners agreement? 

In short, yes. It is vital that you get permission from the other parent before taking a child abroad, even for a holiday. Failing to do so can have serious consequences which we consider below. If there is a Child Arrangements Order in place, a parent with whom the child is recorded as ‘living with’ in the order (which can be both parents) may take a child abroad for a period of 28 days without the permission of the other parent.

A sports person may want to take the children abroad for an extended period while they are competing. Or perhaps one parent has relocated abroad and wants the children to come and spend a long summer holiday with them. Similarly, athletes or advisors sometimes needs to permanently relocate abroad and may wish for their child(ren) to live with them. In an ideal world, parents will be able to come to an agreement about where the children will live and how the children will spend their time. In reality, however, this is often a highly charged and sensitive area of dispute.

Again, we would recommend mediation as the first port of call for parents. However, in practice, relocation decisions are binary, and it can sometimes be difficult for parents to reach an agreement. This is because there will often be a ‘left behind parent’ who feels their relationship with the child(ren) will fundamentally change if the child(ren) relocate(s) to another country to live with the other parent.

If an agreement cannot be reached, you can apply to court for an SIO granting permission for you to take the children abroad, either temporarily or permanently. We do not recommend entering into these applications lightly as they can be time consuming, emotionally fraught and each case turns on its own merits. However, sometimes they are necessary –particularly for international families or those with work commitments abroad.

The court will hear from both parents as to why they consider relocating or remaining here is in the children’s best interests. A Cafcass officer will meet with the family, consider each parent’s position and prepare a report making a recommendation to the court of the outcome they consider best serves the children’s wel(fare). The final decision, taking into account all the evidence before it, rests with the judge who hears the case.

My ex has taken the children abroad but is refusing to bring them home again. What can I do? 

This is a situation that no parent wants to find themselves in. If your former partner has taken the children abroad without your permission, this is legally an abduction. Or, if they have retained the children in another country, this is wrongful retention. In either situation, you should seek legal advice immediately. Equally, if you suspect that your ex might try and take the children abroad without your permission, consult a solicitor and inform the police without delay. There are safeguards that can be put in place including border alerts to stop them leaving the country.

There are steps that can be taken to have your children returned to England, although the process and the outcome depends very much on which country your ex has travelled to.

The UK is a signatory of the 1980 Hague Convention6 of which there are 97 other signatories including the US, Canada and Australia. If your child has been abducted or retained in a Hague Convention country, there is a legal avenue open to you to bring them home. However, you must act quickly - the longer the children remain abroad, the harder it can be to have them returned home. Your application will be put before a judge urgently. A summary decision will then be made on whether the children have been wrongfully retained, and if so, an order will be made for their return which is enforceable in the country of retention.

The process is more complicated if the children have been wrongfully retained in a country which is not a signatory to the Hague Convention. In these circumstances, your lawyer will advise you on that country’s laws and the enforceability of English court orders in their jurisdiction. Countries such as China that do not recognise English court orders can pose particular difficulties, and countries which do not recognise same sex relationships, such as Russia, can also present hurdles. We highly recommend taking specialist legal advice at the earliest opportunity if you find yourself faced with this situation.

Please note that this article is for your information only. Please seek legal advice if you are uncertain about any points above.

 

1† Section 3(1) Children Act 1989 – defines Parental Responsibility as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property". (last accessed 22 Aug 2022)

2† Resolution homepage: https://resolution.org.uk/find-a-law-professional/ (last accessed 22 Aug 2022)

3† Relate homepage: https://www.relate.org.uk/relationship-help/help-separation-and-divorce/mediation (last accessed 22 Aug 2022)

4† Section 8 The Children Act 1989

5† As per footnote 4 above

6† Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 (last accessed 22 Aug 2022)


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