Alison Fielden & CO: Divorced and Relocating With Children?

Divorce: Can I Relocate Abroad with the Children?

Many separated parents want to relocate abroad with their children following a divorce or separation.  For some separated parents, lockdown may also have triggered thoughts of a new start or direction in their lives.  There may be those separated parents who now realise that they do not need to live in a specific country for work purposes and, therefore, now wish to relocate to another country as remote working gives them the freedom and flexibility to do so, particular those who do freelance work.  Those parents will need to carefully consider their decision against the backdrop of the legal framework to ensure they maximise everyone’s best interest.

Whatever the exact motivation, any proposed relocation with a child outside the country requires detailed consideration and planning.  A parent who wishes to relocate abroad after divorce or separation will need to obtain permission from the other parent (or anyone else with parental responsibility) or they will need to apply to the Court for an Order granting them permission.  This type of application is known as a “leave to remove”.

If the parents are on good terms, then the best and most cost-effective solution is to try and reach agreement.  A forum like mediation can allow both parents to have their voices heard within the discussions – often a lack of communication is the main reason parents feel unable to sort matters between them.

There will be times when a Court application is the only option; however, for the majority of cases it is always best for parents to have full control over what is in their children’s best interest as they know their child best.  If mediation does not seem appropriate there may be other suitable and creative options for hopefully narrowing down the issues.  These options may include arbitration or scheduling a round table meeting for example.

If a Court application is made, then the Court must consider the welfare of the child and what is in the child’s best interest.  This will include assessing the parent’s plans, the arrangements for contact between the child and the other parent and the impact of refusing permission upon the child.  The parent seeking to relocate will need to set out all necessary information in respect of the child’s schooling, suitable housing arrangements, support network etc and to show that the plans are well thought out with good reasons given for the proposed relocation. The parent opposing relocation will also need to set out in detail the reasons for refusing their permission, the Court will hear evidence and decide in accordance with the specific facts of the case whether the proposed relocation is in the child’s best interest. In the case of Re F (A Child) (International Relocation Cases) [2015], the Court of Appeal provided a comprehensive overview of the case law.  Each proposal needs to be evaluated as to its own merits and by reference to what the child has to say and then compared side by side with that proposed by the other party.  A welfare analysis of each proposal will be necessary. The welfare of the child is paramount.   International cases, where the possibility of a fundamental interference with the relationship between one parent and a child is envisaged, require that the parents’ plans be scrutinised and evaluated by reference to the proportionality of the same when weighed against the parties’ Article 8 Human Rights (ie the Right to ‘Family Life’).

What happens if a parent unilaterally makes plans to relocate abroad with their child without discussing this with, or getting the consent of the other parent?

Any removal of a child from England and Wales is child abduction unless permission has been given by the Court or by virtue of the written consent of the other parent (or any other individual who has parental responsibility for the child).

Before the UK left the EU, parental child abduction was dealt with under the Brussels II A Regulation which regulates the rules of jurisdiction for parental responsibility, child protection and child abduction within the EU.  The UK now solely relies on the 1980 and 1996 Hague Conventions.

It is always best to take the necessary preventative steps in order to stop a potential removal which could include for example, obtaining a Prohibited Steps Order from the Court.  This is particularly the case now with some suggesting that child abduction cases will not be dealt with as swiftly as required under Brussels II A and some concerns that custody and child abduction disputes will become more complex and costly.  It remains to be seen whether the UK will implement the same provisions as Brussels II A into domestic law.

If there are genuine concerns about potential child abduction, it is important to ensure that you act quickly.  If there is an immediate risk, then Port alerts will be required.  If there is sufficient time to secure an ex-parte application at Court (for an Order prohibiting the removal of a child from a jurisdiction) then this should be actioned as quickly as possible.

For advice about Family Law please contact Steven Barratt or Heather Weavill at Alison Fielden & Co Solicitors, telephone 01285 653261, website www.alisonfielden .co.uk