The world became a smaller place when international travel became affordable for most people. Romance and marriage soon followed, and multinational couples are now relatively commonplace.
Some go on to have children and most times this is a cause of celebration but, unfortunately, children can also be a source of considerable complication if things go wrong. The spouse or partner living abroad has sacrificed proximity to their family, friends and home for a new life with their significant other abroad, and if the relationship or marriage breaks down, they may lose any of the motivation they once had for remaining in the UK. Divorced and separated expats often feel isolated, homesick and desperate to return to their old lives.
Changing circumstances can also tempt British divorcees towards new lives abroad. They may want to improve their circumstances, have a job offer in another country or a new overseas partner.
If the former couple had no children, the partner keen to go will be entirely free to dig out their passport and fly away once the divorce has been settled or the separation completed. But if there are children, they will have to – as a matter of law – reach an arrangement with the other parent because their children have a right to a continuing relationship with them, unless there is a very good reason for it not to continue. Taking a child abroad without consent is abduction.
As family law specialists, we frequently receive enquiries from anxious and unhappy parents who want to go home or on to a third country, and from others worried they may lose contact with their child after hearing the other parent talk about leaving the country. Divorce and separation are already stressful enough. So just what is the law?
Habitual residence and the child’s rights
An essential concept in international relocation cases is habitual residence. This legal term refers to the country where a child has a settled presence, both physically and emotionally. The UK courts use habitual residence to determine jurisdictional issues in international child disputes. A child’s habitual residence is not solely determined by the length of stay but by factors like the degree of integration into the new environment, including education, language, and family ties.
If a parent relocates a child abroad without court approval, and the child becomes established in another country, this may complicate legal proceedings, as the child’s habitual residence may shift over time. This can significantly affect which country’s courts have authority over future matters concerning the child.
Parental responsibility and legal nuances
Parental responsibility is defined under Section 3(1) of the Children Act 1989. Mothers automatically have parental responsibility, and fathers usually acquire it if they are married to the mother at the time of birth or are registered on the child’s birth certificate (post-2003 in England and Wales).
In practice, even when only one parent has day-to-day care of the child, both parents with parental responsibility have a legal right to make significant decisions in the child’s life, including relocation abroad. It is important to understand that this shared right does not mean the parents must always agree on everything, but that they must agree on fundamental decisions—relocation being one of them.
I am separated/ divorced and want to relocate abroad with my child – how do I do so?
If you wish to move abroad with your child or children, there are two routes open to you:
- Obtain written consent from the other parent, along with anyone else who holds parental responsibility for the child. This could be an adoptive parent, a legal guardian or other carer, and is distinct from biological parenthood.
- Apply for permission from the family courts if the other parent does not or will not agree to the relocation. You can take this route if a child arrangements order is in place. This is a legal order setting out which parent a child should live with and how much time they should spend the other.
Unless a family court has specifically stated otherwise, the parent with which a child normally lives does not require legal permission to take them abroad for a holiday or visit of less than a month, but it is still sensible and in the best interests of your child to inform the other parent and negotiate with them if necessary.
How will the family courts approach a potential move abroad?
The fundamental legal consideration in any case involving children is their best interests. The Children Act 1989 states clearly that:
“When a court determines any question with respect to…the upbringing of a child…the child’s welfare shall be the court’s paramount consideration.”
This means that a child’s welfare will always take priority over the wishes of the parents in a family court ruling. This might mean a judge:
- Ordering the parent with whom the child lives to remain in the UK – at least for the time being – so the other parent can continue to see them.
- Allowing the relocation if, for example, a judge decides that ordering the parent with care of the child to stay in the UK would have a serious, negative effect on their wellbeing or health, something that obviously would not be in the child’s best interests. In such the courts will still endeavour to ensure regular time with the other parent.
Specific Issue Orders: A route for resolving disputes
When disputes arise over moving abroad, the appropriate legal tool is a Specific Issue Order under Section 8 of the Children Act 1989. This allows the court to determine whether a specific action—such as international relocation—should be permitted.
The court will look at:
- Whether the proposed move aligns with the child’s best interests
- The viability and realism of the relocation plan
- The implications of refusal on the parent proposing the move
The court can also combine a Specific Issue Order with a Child Arrangements Order, which clarifies where the child will live and with whom they will spend time. These tools help ensure legal clarity and support enforcement if conflicts arise post-relocation.
The Role of CAFCASS
In many relocation cases, the court will involve CAFCASS (Children and Family Court Advisory and Support Service). CAFCASS officers are specialists who advise the family courts in England on what is safe for children and what arrangements are in their best interests.
CAFCASS may be asked to:
- Interview both parents and the child
- Review the child’s educational, emotional, and developmental needs
- Provide a report with recommendations
These reports carry significant weight in court and help judges make decisions aligned with the child’s welfare.
Psychological impact on the child
One aspect sometimes underplayed in legal arguments is the psychological impact on the child. While the court primarily considers welfare from a legal standpoint, psychological well-being should also be considered.
Factors include:
- The trauma of separation from the non-relocating parent
- Adjustment to a new culture or language
- Potential isolation from extended family and social networks
Psychological evaluations or expert testimony can sometimes be introduced in contentious cases where concerns about emotional well-being are raised.
Post-relocation contact arrangements
Courts aim to ensure that, where possible, the non-relocating parent maintains a meaningful relationship with the child. This can include:
- Extended holiday visits, particularly during summer and winter breaks
- Virtual contact via video calls, messaging, and emails
In some cases, the relocating parent may be asked to cover the costs of international travel to ensure the child’s continued relationship with the other parent. This may include:
- Airfare for the child
- Accommodation for the visiting parent, if contact takes place abroad
- Communication tools and schedules for consistent contact
Risk of relocation denial
There are several scenarios where the UK courts may refuse relocation, even if the primary carer is the one proposing the move. These include:
- If the move appears to be motivated by a desire to reduce or eliminate the other parent’s contact
- If the proposed living situation in the new country lacks stability
- If the parent’s plans appear unrealistic or inadequately thought out
- If the child expresses strong opposition (particularly in cases involving older children)
Judges have emphasised in more recent judgments that they are moving away from simply favouring the resident parent’s wishes and focusing more equally on all parties’ rights—especially the child’s.
Temporary relocation and holidays
Not all moves abroad are permanent. Some parents wish to take their children overseas temporarily, for instance:
- To live with family for a set time
- For educational purposes
- For religious reasons or cultural immersion
In such cases, if the other parent does not consent to the trip, even if temporary, permission from the court is still required. The court’s focus remains on whether the proposed temporary absence serves the child’s welfare and does not disrupt their education or regular contact with the other parent.
Additionally, parents should remember that if a Child Arrangements Order is in place specifying who the child lives with, that parent can take the child out of the country for up to 28 days without needing the court’s permission, provided there is no Prohibited Steps Order or other relevant legal restriction.
Enforcement of overseas court orders in the UK
Another important consideration arises when relocation orders are made in foreign courts. If a parent has relocated from the UK with the proper permissions but then seeks to modify the agreement—such as limiting contact with the left-behind parent—they may run into difficulties enforcing foreign orders in UK courts.
Similarly, if the left-behind parent seeks enforcement of a UK order abroad, they must consider the legal framework of the destination country. Some countries are signatories to the Hague Convention and will honour UK court orders. Others are not, and enforcing orders becomes much more complex.
Mediation and Alternative Dispute Resolution (ADR)
Before initiating court proceedings, courts often expect parents to attempt mediation. Family mediation can help:
- Explore compromises, such as trial relocation periods
- Set detailed contact schedules
- Reduce animosity and improve long-term co-parenting
Mediation is not legally binding unless incorporated into a court order but can form the foundation of a workable and amicable agreement.
Preparing for relocation hearings
A parent intending to relocate must prepare a comprehensive and realistic proposal, including:
- Detailed plans of the child’s new home, school, and local environment
- Evidence of employment or financial support in the new country
- A plan for continued contact with the other parent, including flights, accommodations, and digital contact
- Evidence that the child will not lose ties with extended family in the UK
The court will scrutinise the application carefully. A poorly prepared or vague proposal can be grounds for rejection, even if the relocating parent has genuine intentions.
Do I need to permission to locate to a different part of the UK?
If you wish to move to a different part of the UK – for example, from England to Wales – you do not require specific legal permission. But the other parent could legitimately argue in family court that a long distance relocation may interfere with their ability to see the child or children on a regular basis.
Relocating abroad with a child after divorce is one of the most legally and emotionally complex areas of family law. Every case is highly fact-specific and guided by the principle of the child’s welfare being paramount. The courts weigh each parent’s rights and motivations against the potential impact on the child’s development, happiness, and sense of stability.
While many parents succeed in relocating when proper procedures are followed, others face refusal due to lack of planning, poor communication, or the child’s potential loss of a meaningful relationship with the other parent. Engaging legal advice early, maintaining transparency, and prioritising the child’s best interests are essential for anyone considering such a significant life change.