Giving birth abroad: the legal implications

Giving birth abroad, whether planned or unexpected, can have far reaching consequences for parents and their babies. It’s essential to understand the legal implications, and how this can impact where is deemed ‘home’ for your newborn. 

The choice of where to give birth is deeply personal, influenced by factors such as proximity to family, work, as well as the availability, quality, and cost of healthcare services. However, you cannot always predict when – and where – your baby will be born. Giving birth abroad can be part of your meticulously prepared birth plan, or an entirely unexpected surprise whilst travelling. There are lots of legal and administrative complications which can arise following a birth abroad, so parents should seek advice before making plans to travel. 

The Law

Giving birth abroad can affect the legal decisions made in relation to:

• Where your baby should live
• Who your baby should live with
• Whether your baby can travel to another country

Where a legal dispute arises concerning one of these issues, the Court in England and Wales will need to determine where the child is habitually resident. 

To be habitually resident in a country, there must be “some degree of integration by the child in a social and family environment” in the country. Habitual residence is fundamentally a factual test. 

For a baby who is born abroad and has never travelled outside of that country, their habitual residence will be their country of birth, regardless of their parents’ citizenship or usual residence. A baby cannot be habitually resident in the country of its parents without having visited it first, regardless of any parental intention or unusual circumstances. This principle was academically considered by Lady Hale of the UK Supreme Court in Re A [2013], and later confirmed by the European Court of Justice in OL v PQ [2017] and UD v XB [2018].

Planning to give birth abroad can be a mutual decision between parents – but if a parent changes their mind, the Court is still principally guided by the test of habitual residence. In the case of OL v PQ [2017], a couple living in Italy agreed that their baby should be born in Greece, where the mother would be surrounded by her family and friends for support. However after the birth, the mother decided to remain in Greece with the baby, despite previously agreeing that she would return to Italy to raise the baby with its father. The father applied to Court requesting for the baby to be ‘returned’ to his care in Italy on the basis that the baby’s habitual residence must be Italy by virtue of the couple’s original intentions and previous residence in Italy. The European Court of Justice ruled that the baby could not be habitually resident in Italy without ever having lived there, and must stay where it was habitually resident – in Greece with the mother, the primary carer.

The European Court of Justice upheld this principle in UD v XB [2018], where the circumstances were far more extreme. Here, the mother was coerced to travel from England to Bangladesh whilst heavily pregnant, held against her will, and gave birth in Bangladesh to her daughter. The mother was eventually able to return to England, albeit without her daughter, and applied to the English Court to make her daughter a ward of the state (meaning that the Court would be appointed as a child’s supreme legal guardian). Following the established test of habitual residence, the Court concluded that they had no jurisdiction to intervene, as the daughter could not be habitually resident in England without ever being physically present there. This case demonstrates that even in extreme cases where the behaviour of one parent towards another impacts where a child is born, and fundamental rights of a parent are infringed, habitual residence remains a factual test as to where the child was born and remains. 

Impact

Before making your birth plans or embarking on a trip abroad whilst pregnant, you may wish to consider the legal implications of giving birth abroad. Even where your partner agrees to return to the UK with your newborn, there are many legal complications that may delay your return and you must ensure that the birth is properly registered in the UK. 

If you have already given birth abroad and are experiencing difficulties returning to the UK, or are planning to, our Family team has significant experience handling international family matters and can provide specialist legal advice to you.