It is not uncommon these days for families to decide to emigrate or them and their child to live abroad for a temporary period.   In that situation consideration should always be given as to whether the children can automatically be taken out of the Country.

Taking a child to live abroad

Under English law nobody is allowed to take a child out of the jurisdiction of England and Wales without the permission of everyone who has Parental Responsibility because it would be Child Abduction under the Hague Convention on Child Abduction.

Child Arrangements Order

If a Court has made a Child Arrangements Order (formally a Residence Order or Custody Order) to provide the child lives with someone, that person can take the child abroad for less than one month at a time and will therefore not need the permission of the other parent to take the child on holiday.

The concept of “custody” disappeared with the Children Act 1989.  Both parents who have Parental Responsibility will retain it after a divorce, separation or dissolution of civil partnership.

If a parent is intending to move abroad with the child (child to live abroad) and someone else has Parental Responsibility, permission is needed of either the other parent or the permission of the Court.

Permission to relocate child to live abroad

The question of permission to relocate is often described by Lawyers as “Leave to remove”.

When a Court is considering such an application the decision will be made with the child’s welfare as the paramount consideration.

There is no presumption in favour of allowing the child’s primary carer to take the child abroad.

When dealing with this difficult issue, the Court will look at various considerations.

First of all the application must be genuine rather than a ploy to exclude the other parent from the child’s life.  The Applicant needs to show how contact will continue, not only the practical implications, but how affordable it is.  There have been cases where Courts have granted permission to relocate to countries as far away as Australia where contact is only practically possible for a few times a year.

Plan to relocate  

The plans to relocate must be realistic and not based on a whim.  The Applicant must show such things as where the parent will work, where they will live, child care arrangements, finances and where the child will go to school.

The Court has to conduct a balancing exercise, on the one hand looking at the effect on the Applicant and the child if the Application is refused, whilst on the other hand looking at the reasons behind the opposition of the parent who is staying behind.

Sometimes applications are from mothers who are foreign nationals and want to return to their home country to work and to return to their family network.  However, there are situations where applications are also granted to mothers who have never lived in another country but want to move there because they have better job prospects or because they have met a new partner who lives there.

The Applicant needs to consider and address practicalities, for example:

  • How easy is travel to the other country for contact?
  • Are there direct flights or trains?
  • How much does it cost?
  • How long will the travel take and how will this impact on the time that the other parent can spend with his/her child?
  • Where will the other parent stay when having contact? Will it be in a Hotel or will the other parent rent a property or ever buy a property in the new country that can always be used as a base?
  • How often is it envisaged that contact can take place?
  • Time between face to face contact visits can be dealt with by way of indirect contact, i.e. by telephone or Skype.
  • Where will the child go to school in the new country? Are there good State Schools or will the child be privately educated, say in an International School?
  • What is the extent of the social network in the new country?  This can be easy to show if say a parent is returning to his/her home country where the rest of the family live and are able to help with child care arrangements.
  • What language will the child speak in the new country? If say a parent is a foreign national returning to his/her own country there is often a fear that the child will no longer understand English or be able to communicate in the English language.

How we can help  

Every case is different but the morale of the story has to be that where families are considering such a major change in their lives, they should obtain advice from a specialist Solicitor with experience in this area of the law.

If you are contemplating such an application for a child to live abroad or alternatively, you are on the receiving end of such an application, Ringrose Family Law have experts in our offices at Please contact our Boston, Grantham, Lincoln, Newark, Spalding or Sleaford offices.

 

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