When a parent wishes to move abroad with the child(ren) after a divorce, setting the right tone and taking an appropriate approach from the start will be critical to their chances of success.
To move abroad with your child(ren) you will need the consent of the other parent or a Court Order. Without this, you may face Court proceedings in England for abduction of your child(ren), and in the country you move to in order to secure the safe return of the child(ren) to England.
International relocation creates significant change for all those concerned and needs specialist advice. If you are looking to move abroad with your child(ren), speaking with your solicitor at an early stage will allow you to discuss the strengths and weaknesses of your case and to consider:
- The timing of your move and how this will affect any school-aged child(ren). Has an appropriate school been found in the country you wish to move to?
- How will you financially support yourself and the child(ren)?
- Where will you live? What accommodation will you have?
- How will you continue to support the child(ren)’s relationship with the other parent?
Parental Responsibility
In any situation regarding children, the first concept to consider is “parental responsibility” which is "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”, i.e. the parent’s duties towards their child rather than the parent’s rights over their child.
Below is a step-by-step FAQ on common scenarios facing divorced parents in relation to moving abroad:
Q1- I want to move abroad with my child: what are my options?
The starting point is to try and reach an agreement with the other parent. This can be done through discussions between yourselves, through mediation, or discussions via solicitors, Collaborative law, or arbitration.
If you are unable to reach an agreement, an application will need to be made to the court. The first thing to keep in mind is how the Court would look at your application and what is in the child(ren)’s best interests.
The Court’s paramount consideration when considering any application in respect of children is the child’s welfare. The Court will then consider the factors set out in the Children’s Act 1989 known as the “welfare checklist”. These include:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
Q2: Do I need permission from the other parent to take the child(ren) abroad?
If you take your child(ren) abroad without the permission of the other parent, you will have “abducted” the child(ren). This can result in Court proceedings in both England and in the country you have taken your child(ren) to in order to secure the safe return of the child(ren) to England.
Abduction can subsequently have a negative impact on any future application you make to relocate with the child(ren).
If you have concerns about a child(ren) being taken abroad without your agreement there are steps which can be taken to prevent this.
Q3: What happens at Court?
The parent who wishes to move abroad makes their application to the Court to relocate. The parent who is not in agreement with the move can oppose such an application.
Once the application has been made, CAFCASS will be appointed to carry out safeguarding checks and will inform the Court if there are any safety concerns. After these checks have been completed, the first hearing, known as the First Hearing Dispute Resolution Appointment (FHDRA)will take place. There are then potentially another two Hearings, after which the Court will make a decision.
The Judge will consider:
When making a decision on a relocation application, the Judge will consider all the evidence put before the Court, which will include:
- Your statement – which will set out your position
- The other parent’s statement – setting out why they disagree with the move
- The Cafcass report - which will set out the wishes and feelings of the child(ren) depending on their age and their recommendations
- Any other evidence
The Judge will hear oral evidence at the Final Hearing from both parents and the Cafcass officer and anyone else who has provided a statement to the Court, for example a grandparent or an expert (e.g. an independent social worker, or a psychologist).
At the end of the Final Hearing, the Judge will make a Final Order granting or refusing permission to relocate with the child(ren).
For help and advice on this topic or related issues, please do not hesitate to contact Sonal Parekh on 01727798060, or email sonal.parekh@salaw.com.
