International Relocation of Children

Today it is more likely than ever, that individuals will leave the country in which they were born, for example to work or to travel. This often results in them forming relationships, and eventually having children together. It is therefore, not surprising, that children frequently move between jurisdictions either by agreement, by Order of the Court or because of parental child abduction. It is also not uncommon for one party to consider moving abroad and perhaps return to the country in which they were born with their children after a divorce or separation.

What to consider if you wish to relocate with children abroad

If you are separated or divorced and want to move abroad with your children to live in another country permanently, you must first obtain the written permission of the other parent, and/or any other person who has parental responsibility for the child.

If any person with parental responsibility will not give their consent to the children moving abroad, in those instances, it is vitally important to seek legal advice. If an agreement cannot be reached, you will need to file an application with the Court for permission to relocate.

How can you try to resolve the matter amicably outside Court proceedings?

It is recommended that you try to negotiate the matter between you, as the children’s parents and this may involve for example, offering the other party additional time with the children during the holidays and ensuring they can have regular contact with the children via telephone/video call. It can be extremely daunting for the remaining parent to lose regular contact with their child and therefore resolving this issue can assist parties in reaching an agreement.

Parents can also attend mediation (including child inclusive mediation in appropriate circumstances) to assist with discussing the proposed relocation and what this means for all involved.

What happens if parties cannot agree?

If the other party still does not provide their consent, then you may wish to make an application to the Court for permission. This is known as a ‘leave to remove’ or a ‘relocation’ application. If the Court gives you permission to move abroad, you no longer require the permission of the other party with parental responsibility.

Before making an application to Court, you will need to consider the arrangements in detail, as the Court will need as much information as possible about your plans, including: where you intend to live, details of any work you have arranged, where your child or children will go to school, healthcare arrangements, details of your support network, your plans for how the children will stay in contact with the other parent and wider family, and what it would mean for you if you were prevented from moving.

What can you do if your former partner wishes to relocate with the children?

If your former partner has made an application to relocate with your children to another country and you want to oppose this, you will need to explain why you do not agree, and cover things such as the current contact you have and how this will be affected by a move, any problems with the proposed educational or living arrangements, the wishes of the children and the effect on you and the children of a move.

What does the Court consider when looking at an application to relocate children?

In deciding whether or not to grant an application for removal, the Court has a checklist of things to consider (called the ‘welfare checklist’). This includes:

• the wishes and feelings of the children,
• the children’s physical, emotional and educational needs,
• the likely effect on the children,
• the children’s age, sex and background,
• the risk of the children suffering harm,
• how capable each parent is of meeting the children’s needs.

The Court will also consider how permission or refusal will affect the parents and the children, and whether the wish to relocate or opposition to it are genuine.

The Court will want to understand the arrangements for the child in relation to where they will live, any support network and contact arrangements with the other parent and extended family. This will be particularly relevant where the child has regular contact with both parents before any relocation.

These applications are extremely difficult for all involved including the Judges making the decision, and therefore it is important to receive legal advice at the earliest opportunity if you are considering relocating with your children.

Child abduction

If a child is wrongfully removed from a country by one parent, the other parent can potentially file an urgent application under The Hague Convention. The United Kingdom is a party to The Hague Convention (an international convention under which legal procedures are agreed with a number of other countries also party to the international convention) and this assists in the return of a child who has been abducted. The Convention works on the principle of returning children who have been wrongfully removed from their country of habitual residence. The Courts are required to return a child who has been wrongfully removed unless there are specific grounds which can be successfully argued. These include:

• To return the child would expose them to a grave risk of harm
• Exposure to physical or psychological harm
• The child objects to the return
• Consent or Acquiesce has been given

Is there anything else to consider if we have reached an agreement between us?

In some cases, a move abroad is agreed between the parents. Often, there is a presumption that this scenario should make things more straight forward. However, it is sometimes the case that in order to obtain the necessary VISA, there will need to be a Court Order. Whilst this scenario does not involve tension between the parties, it is important to seek legal advice at the early stages of the process. Our family law solicitors can assist with completing the necessary paperwork and drafting the Order that would be required to satisfy the VISA requirements.

How to contact us

At Ellisons, we work closely with our colleagues across all teams. Our Family Team and Immigration Team will work closely together when necessary to ensure the best outcome is achieved.

It is important to seek advice promptly in respect of relocation cases and even more so within international abduction cases. At Ellisons, our specialist Family Solicitors are able to assist and act quickly and efficiently.

We offer a free exploratory call, so that we can discuss your needs and look to match your specific circumstances with the right specialist family lawyer in our team.