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A closer look at international child relocation and parental responsibility

By Rachael Kershaw -

A closer look at international child relocation and parental responsibility

Relocating abroad has become a common experience for many families and their children. There are many reasons why families may wish to move abroad: new career prospects, proximity to other family members, or simply because a more relaxed way of life may be beneficial. Relocation can be an exciting time for both the parents and children involved. However where the parents are separated, issues can arise if the move entails leaving a parent behind. Factors such as potential risks of uprooting current schooling and friendship networks, the child’s future prospects, and how the relationship with the remaining parent will be maintained all need to be thoroughly considered when deciding to relocate abroad with a child.

Before the child is moved

Legal rights of parents - holidays

In order to take your child abroad, in most circumstances, permission needs to be obtained from every individual who has parental responsibility for the child, even if the trip is only for a matter of days. Parental responsibility is made up of the rights, duties and obligations a parent has to the child. If consent is unreasonably withheld by one of the parents, a court application may be necessary to allow the trip.

If both parents have parental responsibility, but one parent has been granted a child arrangements order stating that the child must live with them, then that parent is permitted to take the child abroad for a maximum of 28 days without written consent from the other parent. These parents are advised to take a copy of the relevant documentation with them when travelling abroad.

If only one parent has parental responsibility for the child and there is no child arrangements order in place, then permission is not strictly needed for that party to take their child on holiday. If other family members, such as grandparents, choose to take the child on holiday they too must get permission from both parents if they both have parental responsibility.

It is also generally viewed as reasonable to rearrange or offer additional contact time in compensation to the other parent if any has been missed due to holiday arrangements.

For further information regarding the documents and guidelines to be aware of when travelling abroad with your child, please visit the following link.

Considerations of the court in permanent relocation cases

If a parent wishes to take the child abroad for an extended period of time, they must obtain either the oral or written consent of all parties with parental responsibility. If this consent is not acquired, permission of the court must be sought in the form of a leave to remove application. If a child is removed from a jurisdiction without this permission, the act of removing them can be a criminal offence.

If the court does become involved, the most crucial factor they will assess before permitting a move will be to determine whether it is in the child’s best interests. The court will want to see evidence of a plan relating to the child’s living arrangements, healthcare and educational opportunities. Evidence for how the child will be supported financially in a new country must also be provided.

The court will also assess the feasibility of contact for the non-resident parent and how a relationship can be maintained between the child and parent through face-to-face contact and via indirect means, such as instant messages and Skype calls. It is recommended that parties seek legal advice when preparing evidence to demonstrate that a move has been thoroughly considered.

In the case law laid out in Payne v Payne the court set out clearly the following considerations for guidance:

  • Is the emigrating parent the primary carer?
  • Are the motives of the move genuine?
  • Are the plans well thought through?

It was later held in the case of K (Children) that the only truly binding principle on the judiciary when making a decision is that the child’s welfare is the court’s paramount consideration.

In the recent case of F (Child) EWCA Civ 1364, the court considered the following questions to aid in their decision:

  • Is the application to relocate genuine, in the sense that it is based on practical proposals that have been well investigated, rather than a desire for the other parent to be excluded from the child's life?
  • Similarly, is the remaining parent’s opposition motivated by a genuine concern for the future well-being of the child or an ulterior motive?
  • What would be the future of the relationship with the remaining parent if the application was granted?
  • What would be the impact on the parent making the application?

The answers to the above points were then reviewed in the light of the child's welfare, as is directed by the statutory welfare check-list.

The statutory welfare check-list

All cases involving children are required to regard the welfare check-list depicted in section 1(3) of the Children Act 1989.  The below points are all assessed by the court in any child proceedings to determine the best course of action for the child’s welfare:

  1. The ascertainable wishes and feelings of the child in light of their age and understanding.
  2. The child’s physical, emotional and educational needs.
  3. The likely effect on the child of the change in circumstances as a result of the court’s decision.
  4. The child’s age, sex, background and any characteristics which will be relevant to the courts decision.
  5. Any harm the child has suffered or is at risk of suffering.
  6. Capabilities of the parent, or other persons that the court finds relevant, to meet the child’s needs.
  7. The powers available to the court in the given proceedings.

Once a child has been moved

Enforceability of parental responsibility

Parental responsibilities of the non-resident parent do not alter if their child is based in another jurisdiction. Both parents are still required to uphold any contact orders made and to continue to pay the arranged maintenance, though there may be scope for this to be varied if the parents experience a change in financial circumstance. In terms of enforceability, the UK has treaties with over 100 countries, ensuring that maintenance orders are upheld internationally.

The Hague Convention

Further safeguarding in respect of children is provided under the Hague Convention on International Child Abduction. Signatories, including most of Europe and North America, are bound to enforce each other’s decisions regarding child abduction cases. If it is found that a child has been unlawfully removed from a jurisdiction, fellow member states will help return the child to their home country, ensuring their safe return.

NB: If you suspect your child is at risk of being unlawfully removed, seek immediate legal advice.

Travel documents

When travelling abroad with children, you may be asked to prove both your child’s identity and your relationship to them. Checks may be undertaken if you and the child do not share a surname, or if you are not travelling with the other parent. These checks are a way in which border controls can help safe-guard against child abduction and smuggling.

Each country has its own entry and exit requirements; some jurisdictions have more stringent regulations than others. Necessary travel documents, such as passports (and visas where required) should be taken, as well as additional documentation such as birth and marriage certificates, if you wish to err on the side of caution. Travel consent letters are also advised, demonstrating that you have permission to take the child abroad - this should be signed by the parent(s) who are not travelling. Before leaving the country, it may be necessary to check with your embassy as well as with the relevant embassy you will be travelling to or through.

Summary

Ultimately, there are many factors to consider when taking a child abroad either for a holiday or when relocating. Fundamentally, the permission of any parents who have parental responsibility must be sought. If the situation is amicable and circumstances are appropriate, it is best practice to inform the other parent prior to any trips being taken. If at this point consent is not given, it may be necessary to make an application to the court. At this stage, the other parent can dispute a leave to remove application and the court will ultimately use a series of checks and assessments to determine the best interests the child. Every circumstance is unique and can involve a myriad of different considerations. In order to best present or dispute a leave to remove application, it is strongly recommended that legal advice be sought to aid in the making of a strong application or to best block the move.

If you would like to know more about the issues covered in this article, Vardags offers a free consultation to qualifying individuals.

For high net worth and ultra high net worth individuals or their companies, our confidential enquiry line is staffed 24 hours. Call 020 7404 9390 today.

Rachael Kershaw

Rachael joined Vardags in September 2016. After graduating in July 2016, she spent the Summer working as an instructor at an outdoor activities centre in the...