Particularly in the context of international families, one of the most common but complex problems upon 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. It is therefore important to be aware of your rights and responsibilities as a parent in such a situation. Clients will often ask how far can a parent move with joint custody in the UK, but the situation is much more complicated with international relocation.
In order to move abroad permanently or even to make an extended trip to another country, it is necessary to have the permission of either:
Anyone with parental responsibility (usually the parents)
If you move abroad without obtaining this prior permission, you may have committed a criminal offence and, as detailed below, you could face urgent legal action seeking the return of the child.
As a first step, it is always advisable to attempt to agree an arrangement with the other parent. These discussions can take place directly with the other parent, between solicitors or via formal mediation with a neutral third party.
However, where the parents cannot agree on where the child will live, it may be necessary to apply to the Court for an order sanctioning the move. The other parent is able to defend any such relocation application.
As with any important decision relating to a child, the Court’s overriding concern in such cases will always be the child’s welfare and it will consider whether any proposed move is in the child’s best interests. In assessing this question, this Court will have regard to:
The proposed living arrangements
Plans for the child’s ongoing healthcare
Where the child will be educated
How the child will be supported by the parent 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
The prospects of successfully enforcing the arrangements in the new country if necessary
These considerations will be weighed against the benefits and drawbacks of the child’s life in the country where they currently reside. When opposing a relocation application, it will be particularly important to highlight the benefits of the current location and the adverse effects of removing the child, including the impact on any family and wider relationships.
Furthermore, the Court often refers to the ‘welfare checklist’ contained in the Children Act 1989, meaning that the emotional needs of the child will be considered along with any potential risk of harm and, where appropriately ascertainable, 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 ultimately proceeds to trial, and this report may factor in the views of the child as well as those of the parents. The older the child is, the more likely that any views expressed will be given weight in the ISW’s report and the Court’s decision.
It is therefore essential that there is a clear plan in place for your life and the life of the child before the Court is asked to sanction a relocation. Whilst previous case law established that the Court will consider the impact on the parent of refusing an application, it has subsequently been clarified that the welfare of the child remains the predominant concern, and it must be demonstrated that the move will be in the child’s best interests.
This depends on whether there is a child arrangements order in place or not, which takes into account the parents living arrangements. Without this the parent may try to gain access via the Hague Convention if the country is a signatory.
If either parent moves abroad without consent, or stays abroad beyond an agreed date of return, this will likely amount to child abduction.
It is likely here that the other parent will commence legal proceedings to secure the return of the child. In cases where England is one of the countries involved, civil proceedings will often be brought under the Hague Convention 1980. This is an international agreement whereby countries agree to maintain expedited court procedures to return children to the country of their habitual residence. The defences to such actions are limited and, unless there is a grave risk of physical or psychological harm in returning the child, it is likely that a return will be ordered.
It is also possible that criminal proceedings may be started in relation to the abduction. In addition to criminal sanctions, it is important to be aware that relocating without consent is likely to damage your chances of succeeding in any future applications to move abroad and may even impact your ability to go on foreign holidays.
It is essential to take specialist legal advice from an early stage if you or your partner is considering relocating with your children. Decisions relating to a child’s best interests are often finely balanced and the Court will usually aim to ensure that children maintain relationships with both parents. It is therefore important to present a compelling and consistent case from the outset and avoid actions which can ultimately damage your case.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.