Guide to International Child Relocation

Particularly in the context of international families, one of the most common but complex problems on divorce or separation arises where one parent wishes to relocate abroad with the couple’s child(ren). This situation can even arise during a relationship if one partner wishes to be based in a different country. Whether you are the parent hoping to move or the parent who would be left behind, it is important to be aware of your rights and responsibilities. Clients often ask how far a parent can move with joint custody in the UK, but the situation is much more complicated with international relocation.

Can I move abroad with my children? 

To move abroad permanently with your child, or even to take them out of the country for an extended period, you need the permission of either:

• everyone with parental responsibility (usually both parents), or
• the court.

If you remove your child from the country without this permission, you may have committed a criminal offence and, as explained below, you could face urgent legal action seeking the child’s return.

When will the Court grant permission to relocate? 

As a first step, it is always advisable to try to agree an arrangement with the other parent. These discussions can take place directly with the other parent, between solicitors, or through formal mediation with a neutral third party.

Where the parents cannot agree on where the child will live, it may be necessary to apply to the court for an order permitting the move (often called a “leave to remove” application). The other parent is able to defend any such relocation application.

As with any important decision about a child, the court’s overriding concern will always be the child’s welfare, and it will consider whether the proposed move is in the child’s best interests. In assessing this, the court will look at:

• the proposed living arrangements
• plans for the child’s ongoing healthcare
• where the child will be educated
• how you will support yourself and the child in the new country, including financially
• the network of support available to the child in the new country
• the impact of changes in language and culture
• proposals for maintaining contact with the other parent
• how the new country approaches enforcing orders, and the prospects of enforcing the arrangements there if things go wrong

These considerations will be weighed against the benefits and drawbacks of the child’s life in the country where they currently live.

The court will also often refer to the ‘welfare checklist’ in the Children Act 1989. This means the child’s emotional needs will be considered, along with any potential risk of harm and, where they can be ascertained, the child’s own wishes and feelings.

As part of the court process, Cafcass (the Children and Family Court Advisory and Support Service) will automatically be appointed to carry out safeguarding checks when a relocation application is made. It is also likely that an Independent Social Worker (ISW) will report to the court with a recommendation if the matter proceeds to trial. This report may take into account the views of the child as well as those of the parents. The older the child, the more weight their views are likely to carry in the ISW’s report and the court’s decision.

It is therefore essential to have a clear, thorough plan for your life and your child’s life in the new country before asking the court to approve a relocation, backed by a strong command of the facts. Previous case law established that the court will consider the impact on the parent of refusing an application. However, it has since been clarified that the child’s welfare remains the predominant concern, and you must show that the move will be in the child’s best interests.

What if the other parent wants to move abroad with my child?

If it is your partner who wants to move abroad with your child, you will need a thorough understanding of the facts of your case and the legal framework. You can defend their relocation application, and it may be possible to prevent the move.

When opposing a relocation application, it is particularly important to highlight the benefits of the child’s current home and the adverse effects of moving them, including the impact on their relationships with you and the wider family.

Whatever the outcome, you will want arrangements that keep your relationship with your child strong. These might include financial provision for visits, or plans for regular indirect contact such as video calls.

What are the contact (visitation) rights when parents live in different countries?

This depends on whether there is a child arrangements order in place, which sets out the child’s time with each parent and takes into account where each parent lives. Without an order, a parent may try to gain access through the Hague Convention if the other country is a signatory.

In practice, contact across borders usually combines visits with indirect contact, such as regular video calls. Arrangements may also cover who pays for travel so that visits can happen.

What happens if a parent takes a child abroad without consent?

If either parent moves abroad with the child without consent, or keeps the child abroad beyond an agreed date of return, this will likely amount to child abduction.

The other parent is then likely to start legal proceedings to secure the child’s return. Where England is one of the countries involved, civil proceedings will often be brought under the Hague Convention 1980. This is an international agreement under which countries maintain fast-track court procedures to return children to the country where they habitually live. The defences to these claims are limited and, unless there is a grave risk of physical or psychological harm in returning the child, a return is likely to be ordered.

Criminal proceedings may also be brought in relation to the abduction. Beyond criminal sanctions, relocating without consent is likely to damage your chances in any future application to move abroad, and may even affect your ability to take the child on foreign holidays.

Get specialist advice on international child relocation

It is essential to take specialist legal advice early if you or your partner is considering relocating abroad with your children. Decisions about a child’s best interests are often finely balanced, and the court will usually aim to ensure that children keep relationships with both parents. It is therefore important to present a compelling and consistent case from the outset, and to avoid actions that could ultimately damage it.

If you need advice or representation on any Children Law matters, click below for a free initial consultation with one of our expert Children solicitors.