So, you want to live abroad: but can you take your kids?

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As technology brings every part of the world closer together, more and more people think about living and working abroad. For some this will be a short term secondment, for others a more permanent move. As people travel more they build relationships with people they meet overseas some of whom will leave their home and family to make a new life in another country. But what happens if relationships break down? If you have dependent children and want to move them abroad for work or go back to your home country and your family can you simply up and go and take your children with you? Increasingly this is an issue for separated families with old or new ties to other countries.

The starting point is that removal of a child from the UK without the prior written consent of each other person who has parental responsibility or a court order may be in breach of both Civil and Criminal law. If the parent seeking to remove the child has a Child Arrangements Order (CAO) providing for the child to live with them then they are able to remove the child from the UK for a period of less than one month but that clearly doesn’t cover a plan to relocate permanently. If there is no CAO in force, and a parent, with parental responsibility, removes a child from the UK without consent of the other parent or the court’s permission they will have made a wrongful removal. Not only can the “left behind” parent make a civil application under the Hague Convention for the child’s immediate return to the UK, the removing parent may also find themselves facing a criminal charge of child abduction.

It’s clearly crucial therefore that if you want to make a long term move from the UK with your children that you work out issues with the other parent at a very early stage if you possibly can. Don’t assume that agreement will be reached if you wait till the last minute before asking for it! Try and negotiate an arrangement about how you will organise contact both abroad and by bringing your children back to the UK. Skype or FaceTime certainly make this easier but you shouldn’t assume that they will be sufficient. Include in your plans provision for your children having contact in the UK at least once a year and think also about how you could facilitate contact if your former partner travels to the country you want to move to. If you’re not sure about the sort of plans you should be making take advice from a specialist family solicitor who will be able to give you guidance. If you’re finding it difficult to communicate with your former partner face to face they will also be able to refer you to specialist family mediators or work with you collaboratively to help you find a solution without the need for court proceedings. If you can resolve the issue without recourse to the court you should do your best to do so where court proceedings will impose significant costs both financial and emotional on you both.

If you can’t resolve the issue then you will need to make an application for a specific issue order which is an order made by the court to resolve a specific issue in dispute in relation to a child. You will be required to attend at least an initial mediation session (a MIAMS) before you can issue your application so that consideration can be given as to whether your case is suitable for, or can be resolved by mediation rather than court proceedings.

If, in the meantime, your former partner fears that you may simply go ahead and leave the country with the children they may ask you to surrender your child’s passport and to give an undertaking that you won’t take steps to get a replacement and that you won’t try and take the child out of the country until the issue is resolved. If you are asked to give an undertaking and haven’t taken legal advice up to that point it’s essential that you do so then; an undertaking is a formal promise to the Court and you could be imprisoned or fined if you are found to be in contempt of court by giving an undertaking and then breaking it.

If you aren’t willing to give an undertaking and your ex thinks there is a real risk that you will simply go ahead and take the children and sort out the consequences later they can make an application to the court themselves for what is called a Prohibited Steps Order which is, as the name suggests, an order stopping someone from taking a specific step in relation to a child, in this case taking them out of the UK.

So what will the court consider if it is asked to decide whether or not to give permission for children to be removed permanently from the UK? This area of law is one that has been developed by case law over the last 15 years but recently clarified by the 2015 case of F (A Child) (International Relocation Cases) [2015] EWCA Civ 882. This case makes very plain that previous comments, particularly in the 2001 case of Payne v Payne should be seen as guidance which a court may or may not follow and not as establishing a principle by which the court must abide. What is now clear is that the starting point is that both an application to remove a child and any cross application for contact between the child and the non-moving parent must be determined by the child’s welfare which, as in any other child related application, is always paramount. Factors contained within guidance which will often be considered by the court include::

  • Is the application genuine, i.e for genuine reasons and motivations or is it motivated by a desire to exclude the other parent from the child’s life?
  • Is the proposal practical for the child both financially and in terms of educational and health provision?
  • What would be the effect on the Applicant parent if their application were refused?
  • What would be the impact on the Respondent parent and the child’s relationship with that parent if the application were granted?
  • Is the Respondent parent’s opposition motivated by concern for the child or is there an ulterior motive; perhaps a wish to control their former partner and by extension their child?

You will immediately appreciate that if you’re going to succeed on an application of this sort your plans must be well thought out with full and proper consideration given to how your life will work in your new home and how you will maintain a proper relationship between your child and your former partner both directly and indirectly. Some people take the view that they will simply go and deal with the consequences if and when they have to. That is invariably a mistake.

At Slee Blackwell our team of specialist family lawyers have experience of all aspects of child related law including both seeking and resisting applications for international relocation. We’re happy to provide information free of charge initially and our advice will always be realistic to ensure that whether you are looking to take your children out of the UK or to ensure they can’t go, you have the best possible chance of success.

For further information contact us on 0808 139 1606 or email us at [email protected]