Private Lives - Moving a child abroad following a divorce

09 July 2019

In today’s global society it is not unusual for families to move between countries or permanently relocate. Parents may be offered work abroad or move closer to extended family.

Following a separation, if one parent wants to move abroad with the children without objection, there is no need to obtain a court order as long as there is a plan in place to maintain contact with the parent staying behind. Luckily, with modern technology affording so many ways of communicating, contact is easier than ever.

However, if one parent wishes to move abroad and the other objects, this could necessitate family court involvement. Whilst the court may not see any reason to oppose the move, it can make orders to enforce certain conditions or to prohibit the move altogether.

What is the legal position?

It is a criminal offence to remove a child from the country without the appropriate consents in place. This means that consent must be obtained from every person with parental responsibility.

What is parental responsibility?

Parental responsibility is a legal status encompassing all rights, duties and responsibilities in respect of a child. Mothers automatically have parental responsibility, as do fathers if they are named on the birth certificate. This means that if a parent or grandparents plan to take children out of the country even for a short holiday, the necessary consent must still be obtained.

The exception to this rule applies to parents who already have a court order in place confirming contact arrangements, who can take their children out of the country for a maximum of four weeks without consent.

If you are the parent that wants to move

When an international relocation is contemplated the parent wishing to move can apply for a specific issue order under section 8 Children Act 1989.

It is crucial for the parent wishing to move to have a detailed plan in place before making a court application. As the court will want to establish that they are not moving in order to restrict contact with the other parent, if it does not believe the application is genuine, it will be denied.

Full details will need to be provided regarding the child’s schooling and living arrangements. The parent must also provide financial details including their employment status, as well as clear steps for
maintaining contact with the parent staying behind.

If you are the parent that wants to prevent the move

As above, the parent opposing the move can apply to court for a prohibited steps order under the section 8 Children Act 1989.

If the parent opposing the relocation has alternative plans to put forward, they will need to produce evidence showing that the relocation is not in the child’s best interests and is likely to have a negative effect upon them.

How does the court decide?

The welfare of the child is the court’s paramount concern and it uses a list of legal factors, known as the welfare checklist, to help consider the full impact of any decision upon the child.

First steps for either parent

Before either parent can apply to the court to authorise or prevent a move, they must have an initial meeting with a family mediator known as a Mediation Information and Assessment Meeting
(MIAM) to which the other parent will also be invited. If the mediator deems the case suitable, both parents will attend ongoing joint mediation sessions. If mediation proves unsuccessful, either parent can apply to the court.

If the parents are not married, does this impact their freedom to move abroad?

An unmarried parent has just as much right to apply to court to move a child or oppose a move. The same applies to same-sex parents.

However, it is worth noting that if a parent doesn’t have parental responsibility the other parent would not be committing a criminal offence if they tried to proceed with a move without consent. Legal
advice should be obtained to work out how best to resolve this.

What about grandparents’ rights?

Sadly, grandparents are increasingly finding themselves with limited contact with their grandchildren following a divorce.

Ideally, grandparents should speak with the parents to try to establish consistent contact, perhaps by agreeing regular Skype or Facetime calls. Arrangements could also be made for grandchildren who have moved abroad to visit their grandparents during a school holiday trip to visit the other parent.
Except in rare circumstances, grandparents do not have an automatic entitlement to contact with their grandchildren and therefore must obtain permission from the court before applying.

If permission is granted, grandparents can make a court application for a contact order. In this event, it is worth taking specialist family law advice so that the merits of applying can be carefully considered.

This article is from the summer 2019 issue of Private Lives, our newsletter covering the key legal and tax issues that individuals face. To download the latest issue, please visit the newsletter section of our website. Law covered as at July 2019. 

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