There are plenty of reasons why a parent might want to move abroad with their children. If the parents are separated, however, there is a possibility that this could result in disagreement, especially if one party feels the move would reduce the amount of time that they can spend with the children or that their role in the children’s upbringing would be undermined.
If an arrangement is put in place to ensure the children continue to spend a reasonable amount of time with each parent, then there may not be a problem and agreement may be possible. If, however, the process is rushed, isn’t given enough thought, the proposed move abroad could be at risk.
Living Arrangements
Living arrangements agreed outside Court require a lot of co-operation between the parents. Separated partners very often live relatively close to one another to ensure the children have consistent contact with each parent. Naturally, this is tough to achieve if one parent wants to move abroad with the children.
Currently, there are no major barriers on movement between the UK and the EU, so practically speaking, it could be relatively easy for a parent to move abroad with the children. Bear in mind however, that in a few months we are likely to be exiting the EU and restrictions on residency may change dramatically. The situation is unclear and it’s a matter of “watch this space”.
If there is a plan for the children to move abroad, it is essential that you talk to an expert in family law who can advise on the various issues that need to be addressed. You need to know the legal position – not just for yourself, but for the sake of your children, too.
Firstly, you need to find out whether you have parental responsibility (‘PR’) for your children. If you do, then legally you have a say in the important decisions regarding your children’s upbringing, including whether your child moves abroad or not.
Presently, by default, mothers have PR. Fathers only automatically gain PR if they’re married to the mother, named on the child’s birth certificate (if their child was born after 1st December 2003) or alternatively the father can be granted PR by the Mother by agreement or by the Court.
You have parental responsibility, now what?
If you have PR, your former partner can’t take your children out of the country to live abroad unless you give your consent.
If there is agreement to the children moving abroad, it’s still sensible to get a Court to approve the terms of the agreement. This should set out the time the children are to spend with the other parent once they are living abroad, what child maintenance is to be provided and can include how travel arrangements are to be funded. It is also possible to seek a "mirror" order in country to which the children are moving as any future dispute concerning the children and their care will be dealt with in that country.
The approach to be adopted in relation to a move abroad will very much depend on whether the country to which they are moving is a signatory to the Hague Convention on Child Abduction. If that country is not a signatory, matters can get much more complicated and will depend on the laws in that country and what kind of cross-border relationship there is between the two legal systems as to whether any agreement is acted upon. It can be very difficult to challenge the arrangement in another country. Legal advice should be sought before agreeing to a child being taken to a country that is not a signatory to the Hague Convention.
If you are at all unsure, there is no substitute for sensible and clear legal advice and you should seek such advice at an early stage.
What if you don’t want your child to move?
If you object to your children moving abroad, your former partner will need to apply to the Court for permission.
If you are seeking to emigrate with the children, it is very important that you have thought through all the practicalities of what life will be like for you and the children in the new country. A court will want to know about the plans, and you will need to cover information such as:
If you are the parent that is opposed to the move, the Court will want to hear from you as to:
In deciding the dispute, it is the welfare of the children that is the Court’s paramount consideration. It is the welfare of the children which will determine whether or not permission will be given for the children to move abroad.
We can assist in preparing your case in relation to a proposed move abroad so that the Court is fully aware of your views and the implications for the children.
Sadly, sometimes children are taken abroad without permission from the other parent or the Court. This is known as ‘child abduction’. Fortunately, there are legal agreements between the UK and signatories to the Hague Convention that makes it easier to ensure the safe return of your child to England or Wales if they have been taken without consent to a Hague Convention country.
If you're a parent handling a child abduction case, make sure you engage a solicitor who specialises in this field
If you would like to discuss any Family legal issues you can contact Yashin Masoliver on 01892 526344 or ymasoliver@berryandlamberts.co.uk
Our Family team offers an initial one hour fixed fee appointment for £100 plus VAT.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
