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Moving abroad with your child after divorce: the law

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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 of course: in most cases this is a cause of celebration but, unfortunately, children can be 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 that other parent, 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 is already stressful enough. So just what is the law?

I am separated/ divorced and want to relocate abroad with my child – how do I do so?

If you wish to relocate abroad with your child or children, there are two routes open to you:

  1. 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 caregiver. Parental responsibility is the legal status held by parent, implying responsibility for a child’s day-to-day welfare. This is distinct from biological parenthood.
  2. 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 this a ‘child arrangements order’ is in place: that is to say, a legal order regarding 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 do 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.

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.

How will the family courts approach a potential move abroad?

The fundamental legal consideration in any case involving children is their best interests. A fundamental piece of family legislation, 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.”

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 affect on their wellbeing or health, something that obviously would not be in the youngster’s best interests. In such the courts will still endeavour to ensure regular time with the other parent.

Every case is different – just as every family different!

Image by Gerrilynn Nunley via Flickr (Creative Commons)


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