Can my ex take my kids up north? (joint guardianship question)

Savage Tyrant

I recently was granted Joint Guardianship and regular access (1 full weekend and 4 midweek dinner visit of 3 hours per fortnight) of my 3 children.

There was no reason for her to refuse other than her dislike for my new partner and bitterness over my ending of our 9 year relationship.

She now has hinted on more than one occasion that she may well just take the kids up north to live. (she is from there originally)
Can she do that?... I'm now even worried if she was to take them up for a holiday (does she need my permission, as legally it is a different country?)

Thanks in advance for any advice.

racso1975

Savage Tyrant wrote: »

I recently was granted Joint Guardianship and regular access (1 full weekend and 4 midweek dinner visit of 3 hours per fortnight) of my 3 children.

There was no reason for her to refuse other than her dislike for my new partner and bitterness over my ending of our 9 year relationship.

She now has hinted on more than one occasion that she may well just take the kids up north to live. (she is from there originally)
Can she do that?... I'm now even worried if she was to take them up for a holiday (does she need my permission, as legally it is a different country?)

Thanks in advance for any advice.

I would suggest that no matter what advice you get here you back it up with a visit to a solicitor/family law practise.

http://www.citizensinformation.ie/en/birth_family_relationships/cohabiting_couples/access_to_children_and_unmarried_couples.html

Not sure if the above link helps

Orion

Technically she can't, legally, without your permission. But you need to factor in if it's a fight worth fighting. She could move to the arse-end of Donegal legally but not to Belfast which is only up the road. If it's still accessible it might not be worth the acrimony.

You could revisit the access arrangement instead if she's moving far away and get 2 weekends a month instead or something else agreeable.

rolly1

Savage Tyrant wrote: »

I recently was granted Joint Guardianship and regular access (1 full weekend and 4 midweek dinner visit of 3 hours per fortnight) of my 3 children.

There was no reason for her to refuse other than her dislike for my new partner and bitterness over my ending of our 9 year relationship.

She now has hinted on more than one occasion that she may well just take the kids up north to live. (she is from there originally)
Can she do that?... I'm now even worried if she was to take them up for a holiday (does she need my permission, as legally it is a different country?)

Thanks in advance for any advice.

As a guardian jointly she cannot remove the children from this jurisdiction without your consent; whether it is to live permanently or for a holiday does not matter. Doing so without your consent is a criminal offence under section 16 of the Non Fatal Offences against the Person Act, 1997 punishable by a fine or imprisonment or both.
Now that she has raised the whole residence issue the question of holidays up there is something you need to be careful on. Apart from any possible risk that she may not bring them back, there is also the issue of building up expectancy in the children that Northern Ireland will be their new home; as a prelude to a court application for same from their mother. It would be worth stating right now to her that the children are not to be told of her wishes, so as to keep them out of any damaging court actions which may arise.

In the meantime the applicable law is your court awarded access which details the children's residence and the arrangements surrounding their contact with you, which no doubt list irish locations. Unless that order is varied or discharged, it stands, despite anything that is said.

rolly1

Orion wrote: »

You could revisit the access arrangement instead if she's moving far away and get 2 weekends a month instead or something else agreeable.

If she is moving far away within the country and does not want to adhere to the locations, days and times listed in the existing access order then it is up to her to apply to court to vary the access order to change the locations, days and times; if he is not agreeable to the change.

If he doesn't wish the existing access order to change then he doesn't have to do anything except ensure that it is enforced.

Richard

Orion wrote: »

Technically she can't, legally, without your permission. But you need to factor in if it's a fight worth fighting. She could move to the arse-end of Donegal legally but not to Belfast which is only up the road. If it's still accessible it might not be worth the acrimony.

You could revisit the access arrangement instead if she's moving far away and get 2 weekends a month instead or something else agreeable.

Surely it's not just about distance, it's also about potentially having to deal with the NI court system if a problem arose. Or am I wrong there?

Savage Tyrant

Thanks for all the replies, I feel much more secure in my position now with the advice given here.

Richard wrote: »

Surely it's not just about distance, it's also about potentially having to deal with the NI court system if a problem arose. Or am I wrong there?

That would certainly be a major reason for me not wanting her to move the kids there.

amiable

Savage Tyrant wrote: »

Thanks for all the replies, I feel much more secure in my position now with the advice given here.



That would certainly be a major reason for me not wanting her to move the kids there.

Get yourself some good sound legal advice from a solicitor.

It might be the best money you ever spend

Cavehill Red

There is a long-standing precedent in permitting access agreements that accommodate taking children to NI.
I know, I was one of the cases that set the precedent.
In the OP's situation, the ex would have to apply for a variation in access to accommodate visits to the North. Were she to do so, especially if she sought only a few such visits per year, and cited visiting older or incapacitated relatives as the reason, then it is highly likely she would be granted that.
If she sought to keep them in NI, obviously that would be a breach of any access order. Theoretically, the OP could then apply to the courts here to have the children returned to this jurisdiction. However, complications could easily arise, especially if the ex or children or both are entitled to British citizenship.

James Jones

Your Guardianship won't be worth a cent if she goes North. The Courts have no jurisdiction. In fact, Guardianship issues should be dealt with jointly here as per Section 6.-(1) of the Guardianship of Infants Act 1964, whereas with Parental Responsibility, parents in the UK can act unilaterally under Section 2 (7) of the Children's Act 1989.

If she takes your children North, fold the Court Order/Statutory Declaration into a paper aeroplane and throw it after them.

rolly1

James Jones wrote: »

Your Guardianship won't be worth a cent if she goes North. The Courts have no jurisdiction. In fact, Guardianship issues should be dealt with jointly here as per Section 6.-(1) of the Guardianship of Infants Act 1964.......

If she takes your children North, fold the Court Order/Statutory Declaration into a paper aeroplane and throw it after them.

Which would be his legal argument if she did take a court application to remove them to the north i.e. effective extingusihing of his guardianship can only be done by misconduct as a parent; not because the other parent wants to skip the country with the child.

Also under the same act under section 12 all orders must be able to be varied or discharged; a permanent removal to another country negates this and as a result cannot be allowed.This would remove the courts supervisory role in the parents & childrens lives.

Justice MacMenamin made a veiled reference to this in this recent case, when refusing an application by the mother to remove the two children to spain against the father's wishes. He stated:

91. In B. v. B. [1975] I.R. 54, Walsh J. observed at p. 62 of the report:-

“I agree with the Chief Justice when he says that the provisions of s. 11 [of the Guardianship of Infants Act 1964] also underline that any order as to the custody of an infant, or any other order it may make affecting the welfare of the infant under that section, is necessarily only interlocutory in character because circumstances may change from time to time. The change of circumstances may be due to the current position of the parent or parents or the growing up of the child and the changes with the passage of time may bring about, not merely in the relationship of the parents to one another but in their relationship to the child…”


In a case such as this, a court will always have a continuing, supervisory role. I would not wish it to be inferred that this Court is inviting any further application. The passage which has been quoted merely identifies the fundamental truth which is in the nature of all these applications.

If any court grants an order for permanent removal to the north, or any other country, seek an immediate Judicial Review in the High Court while putting a stay on that order.