With so many individuals taking on job opportunities abroad, this has become a common question.
If you are separated and have no children, then you can go as you wish and not have to worry about seeking consent. If, however, you have a child together then matters can become complicated especially if the other party does not agree. As a matter of law, you must reach an agreement with the other parent, as taking a child abroad without seeking consent is abduction.
What do you have to do if you’re looking to relocate with your child?
1. The first is that you obtain written consent from the other parent, along with anyone else who holds parental responsibility for the child/children (this could be an adopted carer or guardian). This is the most amicable approach but also the easiest but only if you can secure written consent.
2. If you are unable to secure the written consent of the other parent, then you will have to seek permission from the family Courts to relocate. This will mean that you will need to make a formal application to the Court. If the other parent’s position remains in disagreement, then your matter will most likely conclude with a Final Hearing where the Court will determine whether you are able to relocate with the child.
Making a relocation application
If you are intending to make a relocation application, 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 your plans, which you will have to set out in a detailed statement. Your solicitor will assist you with preparing your statement.
Your solicitor may also want to obtain statements from other family members who have close involvement with the children and who support your move overseas.
How will the family Courts approach such an application?
The Court’s paramount consideration in all private children’s law matters is the child’s welfare. Any decision determined by the family Courts should be deemed to be in the child’s best interests. The child’s welfare will always take priority over and above the wishes of the parents. This will mean one out of two outcomes, either the Court will order the parent with whom the child lives to remain in the UK or they will grant the relocation but also ensure that that there is a detailed contact plan in place so that there is regular contact between the child and the non-resident parent.
To help the Judge decide whether the move is in the child’s best interests the Judge will consider:
- The wishes and feelings of the children concerned to far as they can be ascertained, and bearing in mind each child’s age and understanding;
- The children’s physical, emotional and educational needs;
- The likely effect on the children of any change in their circumstances;
- The children’s age, sex, background and relevant characteristics;
- The risk of the children suffering harm; and
- How capable each parent is of meeting the children’s needs.
The Judge will consider how permission or refusal to relocate will affect the parents and the children, and will consider the parents’ plans and whether the wish to relocate and opposition to it are genuine.
The Judge may well be assisted in reaching a conclusion by a children and family reporter from the Children and Family Court Advisory and Support Service (Cafcass). A Cafcass officer may be appointed by the Court to speak to both parents, and possibly also to the children (depending on their ages), and then to make a recommendation to the Court.
It is often difficult to predict the outcome of Court proceedings for leave to remove and if you are considering or facing such an application then it is important that you speak to your solicitor and get expert legal advice.
How can we help?
Rina Mistry is a Senior Associate in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children law.
If you need further advice on the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
For more information or advice, please call Rina or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.