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The Courts are dealing with an increased number of applications by parents who wish to relocate to another country with their child or children, especially more so as we are now becoming more mobile across national boundaries and mixed nationality relationships become more common.
This is a very complex area of law as this set of questions and answers aims to demonstrate.
I want to move to another country with my child; do I have to tell the child’s father?
If there is a Residence Order in your favour in respect of the child concerned, you may take the child out of the UK for a temporary period e.g. a holiday less than one month. If you want to relocate to another country permanently, you must either:-
- Obtain the written consent of every person who has Parental Responsibility for the child; or,
- Apply to the Court for permission to do so.
What must I do if an application to the Court is necessary?
You should instruct a family lawyer who will be able to give you detailed legal advice about the right to remove your child out of the jurisdiction and deal with the application.
How does the Court determine if I could emigrate with my child?
The Court has set out a guideline governing whether or not you can take your child abroad as follows:-
- The welfare of the child is always paramount. The child’s wishes will be taken into account where appropriate depending on age and maturity.
- Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask is the mother's application realistic, looking at issues like accommodation, education, health care and jobs. If the application fails either of these tests, the application will be refused.
- If however the application passes these tests then the father's opposition must be carefully assessed: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
- What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal? Where the mother cares for the child or proposes to care for the child within a new family, the impact of refusal on the new family and the stepfather or prospective stepfather must also be carefully evaluated.
What if I take my child out of the country without permission?
If a child is taken out of the UK, without the agreement from everyone who has parental responsibility or the Court's permission via a court order, this is technically known as “child abduction”. The non-custodial parent or person with Parental Responsibility may apply to the Court to have the child returned to the UK.
If the country where the child has been taken to has signed The Hague Convention then the child will be returned to their country of residence. If the country where the child was taken has not signed The Hague Convention then any application will be dealt with in that country's courts.
Need More Advice?
Anyone facing any of these issues should take advice before taking any action.
Book an initial half hour free telephone appointment with one of our family lawyers.
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