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Moving to a new country with your child after separation

View profile for Rachel Benett
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As the world emerges from the Covid-19 pandemic, opportunities to relocate overseas are becoming a reality again. For some, the opportunity could arise from a transfer through work, others may have always had dreams of moving abroad, and others may wish to return to their home country after a period of time living in the UK.

But what is the situation if you are separated from your child’s other parent and they have no plans to relocate with you? Or if your ex-partner tells you that they want to move out of the country with your child?

The starting point is that a parent cannot relocate with a child to another country without either the consent of everyone who has parental responsibility for the child or a court order. Indeed, to remove a child from the jurisdiction of England and Wales without either of these, even for a holiday, is a criminal offence.

There are certain exceptions to this including where the parent taking the child out of the country has a child arrangements order specifying that the child lives with them and takes the child out of the country for less than a month. Other possible exceptions are where the parent believes that the other parent has consented or would consent if they were aware of all the circumstances; where the parent has taken all reasonable steps to communicate with the other parent but has not been able to do to; or where the other parent has unreasonably refused to consent. However, there are limitations to some of these expectations and it is very important to check these before relying on any of them. Taking legal advice is always recommended.

What if your ex-partner does not agree to your proposed relocation?

It is generally preferable to try to resolve disputes to do with your children without having to go to court. This can be significantly less expensive, less stressful, and lead to the issue being resolved much more quickly.

In most cases it is a requirement that before making any application to court you have attended a Mediation Information and Assessment Meeting and considered mediation. Through mediation, you and your ex-partner can work through the issues with the assistance of an impartial third person. Often it is possible to resolve the dispute this way even where at the beginning of the process might not have felt possible. In other situations, mediation can help to narrow the issues between you, ie, some things might be agreed and some things might still be disputed.

It is also possible to try to negotiate through a solicitor.

Relocation cases can often feel quite ‘all or nothing’ or ‘win or lose’, however, it might be possible to reach agreement about a move abroad on the basis of a very clear agreement about how the child will continue to maintain a relationship with, and spend time with, their other parent. If you are the parent wanting to move abroad, it is advisable to come to any discussions, mediation, or negotiation with your ex-partner having thought about this issue carefully. It is a good idea to be clear about what you propose, but also to have an open mind about alternative proposals that your ex-partner might have. It is also advisable to make as much information available as you can about your reasons for wanting to move, as well as what your child’s life might look like after a move, for example, where you could live, what school the child could attend, and their support network in the other country.

Ultimately, if the issue cannot be agreed through mediation or negotiation then the court can make a decision about whether you should be allowed to move to another country with your child. The parent seeking to relocate would need to apply for a specific issue order under section 8 Children Act 1989 or, if there is already a child arrangements order in force which specifies with whom the child is to live and/or when they are to live with any person, an order for leave to remove under section 13 Children Act 1989.

What factors are relevant to the court’s decision?

The law is very clear that when courts are determining applications in relation to the relocation of children, the welfare of the child must be the paramount consideration. It is not the case that the starting point is to go with the wishes of the child’s primary carer. The court is to consider all options by reference to the child’s welfare.

In weighing up the child’s welfare, the court must have regard to the following factors (known as the ‘welfare checklist’):

  1. The child’s ascertainable wishes and feelings (considered in the light of their age and understanding);
  2. The child’s physical, emotional and educational needs;
  3. The likely effect on the child of any change in their circumstances;
  4. The age, sex, background and any characteristics of the child which the court considers relevant;
  5. Any harm which the child has suffered or is at risk of suffering;
  6. How capable each of the child’s parents, and any other relevant person, is of meeting the child’s needs;
  7. The range of powers available to the court.

The following considerations will be relevant in cases of international relocation:

  1. The current care arrangements for the child including who they live with and when, and arrangements for spending time with any parent they do not live with and/or other relevant people;
  2. The motivation of the parent seeking to relocate with the child – their reasons for wanting to move abroad;
  3. The detail of the plan put forward by the parent who seeks to relocate with the child including where they might live, arrangements for school etc.
  4. The motivation of the parent who opposes the relocation – why they do not want their child to move abroad; and their alternative plan for the child’s care.
  5. The detailed proposals put forward by each parent for maintaining the child’s relationship with the other parent.
  6. The likely impact on the child of any move, and particularly in respect of the changes to their relationship with the parent who would be left behind.
  7. The child’s own wishes and feelings.
  8. How any agreed or ordered arrangements for contact between the child and the other parent could be enforced, if necessary, in the other country.
  9. The timing of any move – for example by reference to the child’s stage of education.

Our family law solicitors are experienced in helping parents who wish to relocate with their children, as well as parents who would remain in the UK if the relocation were to go ahead, at all stages including initial advice, negotiation, advice alongside mediation, and in court proceedings if they become necessary. Call us on 0161 696 6193.