Can I move abroad with my children?

These days we live in a mobile society and many people dream of living in another country.

Perhaps they wish to return to a home country to access support from family and friends, after being offered the job of a lifetime, wanting to be close to a new partner or just seeking a new start or better lifestyle.

Now the restrictions which were in place due to the coronavirus pandemic have been lifted in many areas, such dreams no longer have to be on hold.

It is therefore no surprise that when parents separate, we are increasingly faced with disputes about whether one parent should be permitted to move away with the children abroad.

Understandably, these are often some of the most difficult decisions for parents and they are frequently incapable of being settled by agreement, meaning a court process is often necessary.

The upset to the children and the parent left behind cannot be underestimated, nor can the impact on the parent wishing to relocate if they are forced to remain and abandon their plans.

What should I do if I want to relocate with my children?

If you wish to relocate and take your children outside of England and Wales you will need to obtain the consent of the other parent. If the other parent refuses to consent you will need to make a court application for permission to move.

If you were to move a child out of the UK without the consent of everyone else with parental responsibility or a court order then this would constitute child abduction. This can result in criminal proceedings against you, as well as court proceedings to return the children to the UK.

It is important to obtain early legal advice to discuss the strengths and weaknesses of your case and plan the best strategy to try to achieve a successful outcome.

Can my ex stop me relocating?

The other parent can refuse to consent to the move.  If they believe that you may seek to leave the country without their consent or the court’s permission, they can apply for a prohibited steps order to prohibit you taking the children out of the UK.

If granted, this would usually remain in place until the court determines your application to relocate.  The other parent can also oppose your court application for permission for the children to relocate.

They would need to show why they believe it is in the children’s best interests to remain in the UK and they could apply to the court for the children to instead live with them full time.

How would the court approach my application?

The court’s view on this issue is that the welfare of the child is paramount and they will consider what is in the children’s best interests by reference to the “welfare checklist”.

This involves looking at how the children’s physical, emotional and educational needs would be affected by the proposed move, how they would be affected by the change that any proposed move would bring, the child’s own wishes and feelings as far as they can be ascertained, bearing in mind their age and understanding, and how capable each parent is to meet their needs. The court will analyse the positives and negatives of the children going or staying.

Case law shows that if the court considers that the application is ill prepared, inadequately researched or places insufficient attention to practicalities, then it is likely to fail.

It is also likely to fail if it is evident that the parent wishing to move is doing so in order to frustrate contact between the children and the other parent. Evidence in support of your application will need to detail your genuine reasons for wanting to relocate.

You will need to provide details of what your proposed living arrangements will be, details of where your children will go to school and healthcare arrangements that will be in place.

You must be able to show that the proposed relocation is financially viable, detailing where will you work and how will you support yourself and the children, and how childcare will be organised in the new country.

You will need to show that you have considered any immigration or visa issues. You will need to consider the children’s knowledge and experience of the new country, if any, how they will adapt and the steps you will take to aid the transition.

Crucially, your evidence needs to demonstrate your commitment to promoting the best possible relationship between the children and the other parent in the event of your successful relocation.

You will need to detail your proposals for contact (both face to face and telephone or facetime) to include the frequency, the travel options, how much it will cost and how it will be funded.

What is the court process?

Once an application is made, CAFCASS (Children and Family Court Advisory and Support Service) will be appointed to carry out safeguarding checks.  This involves checking with the police and local authority that there are no known safety concerns or welfare risks with respect to your children.

The first hearing (the First Hearing Dispute Resolution Appointment) will be listed.  Both parents will be directed to file witness statements either before or at the first hearing.

The applicant’s statement will set out their detailed plans and the reasons why the move is said to be in the children’s best interests, and the other party’s statement will set out their objections and the reasons why they believe it is in the best interests of the children to stay.

If no agreement can be reached at the first hearing, the court will make directions leading to a final hearing where a judge will make a decision.  There will most likely be direction for a welfare report from CAFCASS or an independent social worker to make recommendations to the court.

In preparation of such a report, the CAFCASS Officer or independent social worker will meet with both parents separately and the children.

At the final hearing, the judge will hear evidence from both parents and any other relevant parties who have filed statements.  Such a hearing can last between two to four days on average and the court will make an order at the end of the hearing, granting or refusing permission for the children to move abroad.

Whether you are considering relocating abroad or have concerns your ex may be planning such a move and don’t believe it to be in your children’s best interests, it is important to seek legal advice early to have the best chance of making or opposing a relocation application.

For confidential, trusted advice about arrangements with children, contact associate solicitor, Rachel Smith on rsmith@mincoffs.co.uk.