MzAgams

A question I often get asked is whether a custodial parent can relocate out of the jurisdiction with the child/ren. Most custody orders specifically state that the consent the non-custodial parent is required for travel out of jurisdiction. In addition most embassies in Nigeria demand consent of both parents before issuing a travel visa to a minor. Where sole custody is awarded, consent will not be required but the non custodial parent should usually be notified. Ideally both parents would agree where the relocation is in the best interest of the child. However, more often than not one parent does not agree with the proposed relocation. When that happens it may be necessary to go to court for a final determination. Going to court is a long, painstaking and costly process, if you can avoid please do.

Until 2003, children matters, including maintenance and alimony, could only be heard as part of divorce proceedings filed under the Matrimonial Causes Act, and would be heard alongside the petition.  This changed when the Child Rights Act (2003) became operational. Section 69 of the CRA gives the high court jurisdiction to make orders on custody and on the rights of access of the parents. Subsection 2 empowers the court to alter, vary or discharge an order they previously made.

Section 27 of the Child Rights Act 2003 also provides that: ‘No person shall remove or take a child out of the custody or protection of his father or mother, guardian or such other person having lawful care or charge of the child against the will of the father, mother, guardian or other person. (2)A person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction‐(a) where the child is unlawfully removed or taken out of Federal Republic of Nigeria‐(i) with intention to return the child to Nigeria, to imprisonment for a term of fifteen years; or (ii) with no intention to return the child to Nigeria, to imprisonment for a term of twenty years; (b) where the child is unlawfully removed or taken out of the State in which the father, mother, guardian or such other person who has lawful care of the child is ordinarily resident, to imprisonment for a term of ten years; or (c)in any case, to imprisonment for a term of seven years.

Removing a child from the person who has lawful care or charge against their will is a criminal offence so any such removal must have the knowledge and consent of such person. Usually such lawful care or charge is stipulated in a custody order or agreement or naturally resides with the person that the child has been living with at the time of the said removal. Where the parents of the child are not married and the child has lived with the mother she is assumed to have lawful care or charge of the child. A father removing said child from her care commits an offence. If the child is in the lawful care of a guardian neither parent can remove the child without the prior consent of the guardian.

The first matter to establish or prove before the court is that the person is in lawful care or charge of the child in question. Under customary law, as it is applicable in some part of Nigeria, if a woman has a child by a man to whom she is not married, custody of the child is deemed to be exclusive to the father of the mother, and this is so even if the child has been acknowledged by the Father. Okoli V. Okoli (2003) confirmed this principle and held that the custody of a child born outside wedlock follows the mother in the absence of any person claiming custody of the child of being the natural father. The rules for establishing a valid marriage under customary law are clear and involve payment of bride price and final customary rites. Where the care or charge of a child is the outcome of a custody order by a court of competent jurisdiction only a court can change the terms if the parents are unable to reach an agreement.

There are no court rules and no case law on procedure for removing a child from the jurisdiction against the wishes of one parent. However, a custodial parent can apply to remove a child from the jurisdiction if it is in the interest of the child under the Child’s Rights Act. The court will consider the application with the child’s best interest as paramount.

Most of the. states in Nigeria have domesticated the CRA and enacted procedural rules for filing applications under the act. Check if you live in one of those states here, a blog post I wrote earlier. In Lagos and Abuja application would be made to specialised Family Courts, in other states an application would be made in to the High Court by originating motion supported supported by an an affidavit requesting leave to relocate the child/ren. The application can be made under the Matrimonial Causes Act if an existing custody order was made in matrimonial proceedings under the Act or the under Child’s Rights Act where the child/ren in question was born out of wedlock or during an valid customary marriage.

Both new relocation applications and an application to amend a previous custody orders require careful investigation and considered judgment. The welfare of the child remains paramount consideration. The application has to be scrutinised with care and the court satisfied that there is a genuine motivation for the move and not merely an intention to stop contact between the child and the other parent. It couuldbe argued that the CRA in its language has diluted the principle of paramount interest of the child/ren by using language such as ‘the welfare’ of the child and including consideration for the parents conduct and wishes. It is respectfully asserted that the CRA does not intend to change established principles but to enhance then and case law will continue to h=guide its interpretation and application.

While I could not find any Nigeria case lawn relocation at this time the leading English case setting out the established principles governing relocation applications, the English case Payne v Payne [2001] would have persuasive authority and should be cited where appropriate.  This case set out the principles and guidance to be considered by the court when hearing a relocation hearing. The guidance provided asks the court to consider,

1. Whether the relocation application is genuine or meant to exclude the other parent from the child’s life
2. Whether the application is realistic and based on practical proposals
3. Whether it is motivated by genuine concern for the future of the child’s welfare;
4. Whether relocation would be detrimental to the respondents future relationship with the children if the relocation application is granted;
5. Whether there is adequate opportunity for continuing contact between the child and the parent left behind
6. Whether any detriment will be offset by extension of the child’s relationships with the applicant family; and
7. Whether the impact on the applicant parent of a refusal of the realistic relocation proposal would be detrimental

A relocation application should include was much detail as would be included in the section on arrangements for children in a divorce petition under the Matrimonial Causes Act. The best interest of a child is not only served by education opportunities. As a matter of fact the Nigerian Supreme Court held that getting an education outside Nigeria did not necessarily meet the best interest of the child since it removed said child from the social and cultural context of Nigeria court. however, this ruling statement was in a 1985 (in an appeal to a case filed in 1975.) The quality and affordability of education have both deteriorated significantly since then. It would be interesting to see how the court would rule today.

A well prepared relocation application should include,

1. Details of the relocating parents income such as employment offer
2. Details of where the relocating parent and the child will live supported by evidence of the family residence or other interim arrangements .
3. Details of the school the child will attend, also supported by available evidence
4. Details of the day-to-day care. of the child – including child care arrangements, medical insurance,
5. Details of travel including visa requirements and flight information.
6. Detailed proposal on how the parent left behind can have access to. the child/ren
7. Details of covid compliance would also be necessary during ongoing pandemic travel restrictions.

It should be noted that Nigeria is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention is an international intergovernmental agreement that facilitates the return of abducted children to lawful parents across international borders. Children may not be returned if it can be established that the return would result in harm to the child.

Article 13(1)(b)10 of the Hague Convention provides:

“Notwithstanding the provisions of the preceding Article (12), the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that… there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Article 13 notes the judicial or administrative authority may also refuse to order the return of the child if the child objects to being returned and has attained an age and degree of maturity for which it is appropriate to take account of their views, as happened when Madonna’s son the 15 year old son Rocco told the court at a hearing instituted by his mother that he wanted to stay with his father Guy Richie in the U.K.

Where a child is illegally removed from Nigeria to another jurisdiction the recourse of the parent left behind would be through the criminal justice system. Where a child/ren is removed from another jurisdiction to Nigeria recourse depends on whether the country from which the child was removed is a signatory and what procedures they have adopted. Either way, once a child/ren is removed from the jurisdiction of the court returning the child/ren could take years and may not find adequate resolution. The case of Egeneonu v Egeneonu is instructive. The father of the children removed them from the U.K., where they were normally resident, to Nigeria, refused to return them and served a 2 year sentence in the U.K. for ignoring court orders to return the children. Beyond his arrest and prison sentence the courts were unable to force Mr. Egeneonu to return the children to their habitual residence in the U.K.

Contrast with the case of Onuoha v Onuoha in Ontario Canada, the mother took the children to Canada in direct contravention of a custody agreement that was made in Nigeria. The Ontario court ordered her to return the children, discrimination against girls, poor educational opportunities, and political instability. were held not sufficient to establish that the children will face serious harm if returned to Nigeria. According to the Ontario Court of Appeal in ­­­­­Ojeikere v Ojeikere, “child abductions harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child”. The existence of legislative and judicial instruments to ensure the safety and well-being of children in their home countries will also be considered in the courts decision.

It will be interesting to explore how the courts decide what is sufficient evidence of domestic violence and abuse in custody hearings. Divorce does not always end abuse and co-parenting can be a challenge where the abusive partner remains uncooperative and abusive. Joint custody is not usually granted in cases where the parties are uncooperative and the relationship between the parents is acrimonious. Where the custodial parent is given sole custody they are not bound to seek the non-custodial parents permission to travel.

Whatever happens, mediation is always preferred in child custody cases and where the custodial parent is planning a relocation. Acrimonious divorces and custody hearings hurt everyone but they always hurt the child/ren most.

If you need a counsellor, a mediator or more legal information book a confidential consultation with me here.

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