Family Law Guide

Guide to international relocation of children

Guide to international relocation of children

As the law stands, where there is no court order regulating the care arrangements of your child, permission from every person with parental responsibility is required in order to take the child out of the country.  The child’s mother will always have parental responsibility.  Fathers who were married to the child’s mother at the time of the child’s birth or who subsequently married the child’s mother have parental responsibility.  Unmarried fathers who are named on the child’s birth certificate also have parental responsibility, providing that the child’s birth was registered on or after 1 December 2003.  Parental responsibility can also be obtained by agreement with the child’s mother or by court order.  If there is a residence order in place the parent whose favour it is in may take the child out of the country for a period of up to 28 days without the other parent’s permission.

While it is not an uncommon dispute, most parents are able to come to an agreement about holiday arrangements for their children.  However, where one parent is seeking to permanently relocate to another country, agreement is less frequent.  A parent cannot permanently relocate with a child without a court order or the agreement of all other persons who have parental responsibility.  There are no exceptions to this rule.  Such a desire to relocate is often sparked by one parent wanting to relocate with a new partner, or a parent wishing to return to their country of origin.

The impact of this decision on the children and the parents, most notably the parent who is left behind/prevented from moving, is life changing.  As the parties’ positions are so far apart it can be difficult to come to an agreement: it comes down to moving or staying and there is little middle ground.  As such, court applications in such circumstances are common.

The paramount consideration of the court is the child’s welfare.  In considering this, much consideration is given to the child’s primary carer.  The court will consider the applicant’s motive: whether it is to exclude the other parent or based on a real desire which has been well thought out and researched.  The other parent’s objections will also be considered: whether it is motivated by genuine concern for the future of the child’s welfare or some ulterior motive.  The court will give thought to the impact that refusal will have on the applicant and their ability to continue to care for the children.  It is an established principle that what causes harm to a child’s primary carer will most likely cause harm to the welfare of the child.  While there is no presumption in favour of the applicant this can be a difficult hurdle for the respondent to overcome.

If you are interested in discussing the international relocation of children please see How Vardags can help with the international relocation of children.