Married couples - individual wills need a joint approach
As the number of children born in the UK to foreign parents is soaring, with 1 in 3 nationally and 7 in 10 in London* being born to at least one foreign parent, it is no surprise that difficulties increasingly arise when family relationships break down.
Divorcing couples involving foreign nationals are frequently faced with making important decisions about which country to divorce in, the financial support being sought and arrangements for the care of the children. In some cases, the UK immigration status of one party and the child(ren) may also be affected by the separation.
One of the most emotionally challenging situations arises when one parent wishes to relocate with their child(ren) to their home country following the divorce or separation. The reason for this might be to return to a family support network, to start a family with a new partner or to work. These situations are never straightforward and a desire to move can involve significant disruption to a child’s relationship with one or both parents.
Traps and pitfalls
Many parents are unaware that they are not entitled to take their child out of the country, even for a holiday, without permission from the other parent. Even in situations where there is an order confirming who a child is to live with, that parent can only take the child abroad for up to one month without the other parent’s consent (and in most cases seeking consent of the other parent is still encouraged and considered good practice).
A parent who removes a child from the UK without permission from the other parent is effectively "abducting" the child, regardless of whether the child usually lives with the "abductor". Family proceedings and in some cases criminal proceedings may be brought in these situations, both in the UK and the country the child has been taken to, in order to secure a swift return of the child.
Seeking the best outcome
The parent wishing to relocate with their child(ren) needs to apply to court for permission if the other parent does not agree. These 'leave to remove'/'relocation' cases can be incredibly upsetting as compromises are often impossible. Relocating the child inevitably separates the child, sometimes by a great distance, from one of his/her parents. Either parent could be devastated by the outcome; for example if the court refuses permission to the parent whose plans to move back home have been thwarted or for the 'left behind' parent facing a huge reduction of time spent with his/her child.
If parents disagree and a court application is needed, it is vital to take legal advice at the earliest opportunity as employing the correct strategy in these cases can have a crucial impact on the success of the application.
The parent wishing to relocate must demonstrate (with evidence) that they have given proper thought to the suitability of the country to which they want to relocate, including:
Most importantly, the moving parent will also need to make suitable proposals in respect of contact between the child and the ‘left behind’ parent. During court proceedings, any unnecessary criticism of the ‘left behind’ parent should be avoided and, instead, the parent applying to relocate with the child needs to demonstrate their commitment to encouraging and protecting the relationship between the child and the parent they leave behind.
Regardless of the outcome, the child’s well-being, support and contact with both parents will be the judge’s priority.
See also our recent blog regarding preventing parental child abduction and the International Travel Child Consent Agreement.
Partner and Head of Department
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