Navigating a move abroad can be tricky for anybody but there can be the added complication if you want to take your children with you and your ex does not agree.
We have helped numerous families successfully relocate abroad from the UK with their children. It is not impossible, but care and precision are needed, and Senior Associate Melissa Jones explains this below.
How do I start the process of moving abroad with my child?
This is not an uncommon question, and you are not the first to ask this.
There are lots of reasons to move abroad and popular places like Dubai, Spain and Australia have a lot of reasons to go such as: remote working, fantastic schools, employment opportunities, earning more money, the weather!
The legal point you should be aware of is that as a separated parent, if you want to permanently relocate abroad and stay in the country you are traveling to, you need to the other parent’s consent to do so (in the absence of a court order granting permission for your child to relocate abroad). You will need the other parent’s consent to move abroad with your child if you both share “’parental responsibility’. The concept of “parental responsibility” refers to the legal rights and duties that a parent has in regard their child’s upbringing.
If my ex doesn’t agree, can’t I just take them with me anyway?
The short answer is no. If you do not have the consent of the other parent, then you could be pursued for parental child abduction which carries significant consequences such as a maximum of seven years imprisonment under the Child Abduction Act 1984.
Hague Convention
Another legal consideration to bear in mind is that if you relocate abroad without the consent from the other parent and you take them to a country that is a signatory to the Hague Convention, then they can seek the child’s return to the UK under the convention. There are 91 countries that are signed up to the Hague Convention.
Hague Convention countries include the following:
- Australia
- Cyprus
- China
- Denmark
- France
- Italy
- Ireland
- Malta
- Singapore
The convention is designed to prevent the unlawful removal or retention of children abroad. It should therefore be treated seriously, and if you move abroad without consent, then you could be forced to return to the UK with your child. Please bear in mind that there are limited circumstances where the court would refuse a request for the child to be returned to the court. It will no doubt set your international relocation case back further if you take the steps without consent in the first place, as you will find it harder to persuade the court to grant you permission to permanently relocate abroad with your child thereafter.
Non-Hague Convention Countries and relocation
Equally it can also be complex and challenging to relocate to a Non-Hague Convention country and the UK court may exercise caution in considering a relocation to such countries. This is because UK orders may not be automatically recognised in the Non-Hague Convention country, making it harder to enforce orders for contact in the UK and limiting the left-behind parent’s legal options if the international relocation is approved by the court.
Non-Hague Convention countries include the following:
- Algeria
- Cuba
- Egypt
- Thailand
- United Arab Emirates (UAE)
- Malaysia
- Vietnam
Early Legal Advice
It is advisable to get a clear understanding of your legal position early on and seek legal advice at the earliest stage as it may shape your chances of success in international relocation.
The steps you can take from the outset are:
- Have a conversation with your ex-partner as soon as practicably possible;
- It is now a requirement to attend mediation with the other parent before making a court application. This is where you will both speak to an independent and trained mediator to see if you can resolve the issues between you. There are still some instances where mediation is not suitable, and an exemption may apply and we can assist you in assessing if this is the case for you;
- You could try to reach an agreement through solicitors and discussion/meetings with your ex’s solicitor. It may be that you can arrange a Round Table Meeting and avoid court proceedings altogether.
If my ex still does not agree, do I have to go to court?
Unless an agreement is reached on the move, it is inevitable that you will need to ask the Court for permission to relocate with your child.
Some tips to help you with a relocation case. Make sure you have done your research and are able to answer the following questions (although this is not an exhaustive list) as the following factors will be relevant for any statement that you may be asked to prepare for court:
- Where will you live?
- Where will you child go to school?
- How will they spend time with the other parent back in the UK, both directly (face-to- face contact) and indirectly (video calls, cards, gifts)
- What will be the cost of travel to and from contact
- Where will you work?
- Any language issues in the new country
- Immigration issues
- Can contact be enforced in the new country, by way of mirror orders, for example.
Cafcass’ role in International Relocation cases
Cafcass, as is standard in Children Act cases, will be directed to carry out safeguarding checks at the start of the case. If an agreement cannot be reached within proceedings, the court is likely to direct Cafcass to prepare a section 7 report to look into the issues especially where the children are of an age where their wishes and feelings are relevant.
How does the court decide?
In reaching a decision, the court’s paramount consideration in an international relocation case is the child’s welfare, and the leading case on this is Re C
The court is likely to list a final hearing where it will make a decision on the international relocation. If after considering the case, the evidence and the welfare checklist, the court determines that the international relocation should be granted, the focus will, of course, be on you making arrangements to facilitate the move with attention to the contact arrangements between your child and your ex-partner.
Top tips to consider when you are considering international relocation
- Plan in advance
- Speak to your ex-partner and see if agreement can be reached
- Speak to your child (where appropriate), especially about their wishes and feelings alongside their worries and concerns
- Communicate positively with your ex-partner
- Get early legal advice
