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If you are considering going abroad to live with a child but you are separated or divorced from the other parent with Parental Responsibility, then unless you have a Child Arrangement Order (Residence Order) allowing you to remove a child from the jurisdiction for 28 days, you will need the consent of the other parent to remove a child from the jurisdiction (whether this be for a holiday or permanently). If you do not have permission to remove your child from the jurisdiction from either the other parent or the court and you go ahead and leave the jurisdiction with your child, it can be classed as child abduction under the Hague Convention.

Transnational parenting is an increasing phenomenon and at AWD Law we have seen a few cases recently where parents from different country’s meet, have children, then separate and want to move back to their home country with their child. If you do not have a child arrangement order to provide where the child lives (formerly called a residence order) and the other parent will not give their consent to remove your child then you must apply to a family court for permission to remove your child.

Let’s assume for the purpose of this article that you have separated from your partner/spouse and wish to move abroad. There could be a number of reasons why you wish to move abroad from being offered employment to wanting to return back to your home land, whatever the reason, it is important to take independent legal advice from an early stage so as to put in place realistic plans.

What’s the court’s approach?

There are many reported cases and the questions which the court will consider, however, the only authentic principle to be applied when determining an application to relocate a child permanently abroad is that the welfare of the child is paramount and overbears all other considerations however reasonable they may be.  Two recent cases of Re TC and JC (Children: Relocation) [2013] EWHC 292 gave guidance so as to help judges identify which factors are likely to be the most important and the weight in which should generally be attached to them when making such important decisions.  The guidance is not confined to categorise cases in accordance with the concepts of primary or shared care.  The older cases seemed to favour applications to relocate made by primary carers but they are no more a reflection on relocation cases and instead the judge will  use the facts of the case and the answers arrived at in consideration of the check list provided by S1(3) Children Act 1989.

Guidance and Questions the Judge will consider

The guidance suggests that the following questions be asked and answered and for the purpose of this article we shall assume that the application to remove a child permanently is the mother’s.

  • Is the mother’s application genuine and not motivated to deliberately exclude the father from the child’s life?
  • Is the mother’s application realistic and well researched? For instance if a mother was returning to her home country then the proposals will be a less arduous undertaking when compared to moving abroad for a new venture.
  • What would be the impact upon the mother if the court refused her realistic application.
  • Whether the father’s opposition is child focused and motived by genuine concern for the future of his child’s welfare and not driven by an ulterior motive such as an adult battle about rights.
  • What would be the impact of the relocation of the child upon the father and his extended family and also his future relationship with his child were the application granted.

Practical things to consider

As stated above, it is important that before making an application to the court for leave to remove a child permanently from the jurisdiction that you carefully think about your plans to move. If you are moving back to your home country then this is not so important because you may have a broad social network including family and friends who can help with childcare.  However, if an application is by a mother who has never lived in the other country but would like to move because they have a good job offer or because they have met a new partner, then it is important to carefully plan your move.

  • You will need to carefully consider the ease and practicalities of travel to the other country such as how to travel there (train or plane), how much the flights cost, the travel time to determine whether the other parent will need to take time off work.
  • Consider accommodation, where you will live, will you rent or buy a property. Also consider accommodation during contact between the father and your child.
  • Language is important especially if the mother is planning to take the child to a country perhaps where the mother can speak the language and the child cannot. Therefore consider the location, it is rural, does it have a large ex-patriot community, will the child be educated in his/her ‘home’ language or will the child learn the language before moving abroad.
  • Consider immigration and whether the country you are travelling to is conditional on the right ‘points’ being obtained or based upon other immigration rules.
  • Whether you have a job offer, make sure you have the evidence in writing, the terms and conditions, any benefits such as health care, accommodation, etc, a copy of the contract of employment and details of working hours.
  • Health care is an important consideration, some country’s do not guarantee free healthcare, therefore, will the employer buy the healthcare or do you need to set aside money for a healthcare insurance policy.
  • Where will your child be educated, what schools are available, what is their cost, what about the curriculum and its compatibility in comparison with the curriculum being studied in the UK. Does the school teach in the same language that the child is accustomed to.
  • Most importantly what are your proposals for contact between your child and the father. How many times a year will your child fly back to the UK, how will the flights be funded, will your child fly unaccompanied and if so is there a charge.

As you can see from the above, there are many issues which need to be considered before making an application to the court for leave to remove a child from the jurisdiction.  Therefore, it is important to take legal advice so that a structured proposal with all of the supporting evidence can be sent to the other parent in the hope and agreement can be reached out of court.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

For further information on the issues contained herein, please contact either Jane or Alyciette on 01329 232314 or by email info@awdlaw.co.uk