Taking Children Abroad and Child Relocation After Separation or Divorce

If you want to move abroad with your child, think about how a Court would look at your application if you have to make one.

The Court’s “paramount consideration” when considering any question relating to a child’s upbringing, including which country a child should live in, is that child’s welfare (section 1(1) of the Children Act 1989).

Section 1(3) of the Children Act 1989 contains a list of factors often referred to as the “welfare checklist”.  The Court is not bound to consider the ‘welfare checklist’ when deciding whether a child should move abroad but the factors in the checklist are often referred to in these cases.  The factors are set out below:

• (a)  the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
• (b) his physical, emotional and educational needs;
• (c) the likely effect on him of any change in his circumstances;
• (d) his age, sex, background and any characteristics of his which the court considers relevant;
• (e) any harm which he has suffered or is at risk of suffering;
• (f) how capable each of his parents, and any other person in relation to whom the court  considers the question to be relevant, is of meeting his needs;
• (g) the range of powers available to the court under this Act in the proceedings in question.

If you think, having regard to these factors, that a move abroad is in your child’s best interests, your next step is to seek legal advice.

International relocation really does require early legal advice. The approach that you take from the very beginning may be critical to your chances of success. An early meeting with us will involve the creation of your strategy to achieve a successful outcome. This will allow us to discuss the strengths and weaknesses of your case and start putting together the practical plans that are so important if you want to move abroad with your child.

There are many things to consider if you want to move abroad with your child.  Listed below are just a few:

• Timing. If your child is of school age, when will it be least disruptive for them to move to a new school?
• Finances. How will you support you and your child if you move?
• Geography. Where will you live and why?
• Relationship with the other parent and / or wider family. How will this be maintained after a move?

There are other options to going to court and we advise all of our clients on the different approaches of achieving what they want as follows:

• Direct discussions between you – We would strongly recommend taking legal advice before seeking agreement with the other parent so that you can be sure to put your case across in the best way possible.
• Mediation – This is where a neutral third party will facilitate discussions between you and the other parent.  We have trained mediators within our team and can  also refer you to a range of mediators outside the firm.
• Collaborative law – This involves you and the other parent both appointing collaboratively trained solicitors.  All discussions will take place face-to-face.  We have partners within our team who are collaboratively trained.
• Discussions between solicitors – We can try to reach agreement via letters and / or meetings with the other parent’s solicitors.

If you cannot reach agreement and still wish to move abroad, you will need to issue Court proceedings.

Please see below for an explanation of why you cannot just take your child abroad.

If you take your child abroad without the consent of the other parent, you will have ‘abducted’ the child. This can result in Court proceedings in England and the country you take your child to in order to secure the safe return of the child to England. It can also result in criminal proceedings. Not only will this be stressful for your child and you, it is also likely to have a negative impact on any future applications to move abroad with your child. It may even cause problems with future holidays overseas.

Unless you agree, your child’s other parent will need to ask the Court for permission to move abroad with your child.  When considering whether you will object to any such move, it might be helpful to consider what a Court would do if faced with an application.

The Court’s “paramount consideration” when considering any question relating to a child’s upbringing, including which country a child should live in, is that child’s welfare (section 1(1) of the Children Act 1989).

Section 1(3) of the Children Act 1989 contains a list of factors often referred to as the “welfare checklist”.  The Court is not bound to consider the ‘welfare checklist’ when deciding whether a child should move abroad but the factors in the checklist are often referred to in these cases.  The factors are set out below:

• (a)  the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
• (b) his physical, emotional and educational needs;
• (c) the likely effect on him of any change in his circumstances;
• (d) his age, sex, background and any characteristics of his which the court considers relevant;
• (e) any harm which he has suffered or is at risk of suffering;
• (f) how capable each of his parents, and any other person in relation to whom the court  considers the question to be relevant, is of meeting his needs;
• (g) the range of powers available to the court under this Act in the proceedings in question.

If you do not think, having regard to these factors, that it is in your child’s best interests to move abroad, your next step is to seek legal advice.

International relocation really does require early legal advice. The approach that you take from the very beginning may be critical to your chances of success. An early meeting with us will involve the creation of your strategy to achieve a successful outcome. We can discuss the strengths and weaknesses of your case and the other parent’s case.   It is crucial to consider the practical arrangements being proposed, or which you think may be proposed, by the other parent and also the arrangements that will be in place if your child stays here.

Has the other parent provide you with their plan if they were to move abroad?  If so, have they considered all the factors you think are relevant, such as those suggested above?  What issues do you see that they have not considered?

You should also consider:

• What is your child’s day-to-day life like now?
• What benefits do they get from the current arrangement?
• What benefits could not be replicated if they were to move abroad?

These considerations should form the basis of any discussions you have with the other parent about their desire to move.  A summary of the possible options available to you to reach an agreement without going to Court can be found HERE.

No. This would amount to child abduction. If your child’s other parent takes your child abroad without your consent, they will have ‘abducted’ the child.  This can result in Court proceedings in England and in the country they are in to secure the safe return of your child to England.  It can also result in criminal proceedings.

If you are concerned that your child may be taken abroad without your consent, you can file an urgent Court application.  You can apply for your child’s passport to be given to you if you do not have it or, if you think the other parent may be about to travel imminently, you can urgently apply for alerts to be raised at ports to stop them.

We have set out below the key stages if an application for your child to move abroad, often referred to as a ‘leave to remove’ or ‘relocation’ application is made.

1. If an agreement cannot be reached, the parent who wishes to move abroad make a Court application seeking permission to move abroad with their child (a ‘relocation application’). The parent who does not want their child to move abroad can defend the application.  If there any concerns about either parent taking the child abroad without permission, appropriate action should be taken.
2. Once the relocation application has been made, CAFCASS will be appointed to carry out safeguarding checks.  For more information on who CAFCASS are and what they do, click HERE. The first hearing (known as the First Hearing Dispute Resolution Appointment or FHDRA) will be listed. CAFCASS will address the Court on any safety concerns before the FHDRA.
3. At the FHDRA, parents will usually be represented by a barrister.  If no agreement can be reached at the FHDRA, the Court will make directions leading to a Final Hearing where a judge will make a decision. These directions will include the filing of witness statements by both parents and any other relevant parties.  There will probably be a direction for a welfare report from CAFCASS or a report from an Independent Social Worker (ISW) who will effectively act as the court’s eyes and ears.  There may be a direction for contact arrangements between the FHDRA and the final hearing if that is necessary.
4. Witness statements will be drafted and filed ahead of the final hearing.  Statements are a crucial part of any case.  They set out each party’s evidence and are one of the most important aspects of the relocation that we work with our clients on.
5. Depending on their age, the CAFCASS officer or ISW may speak to the child that is the focus of the application ahead of the final hearing.  They are also likely to speak to the parents.  They will prepare a report on their findings for the Court.  The CAFCASS officer or ISW report will usually recommend that the Court support or refuse the relocation application.  This report, like the statements, is an important part of the case.
6. The final hearing will take place. The Court will have statements from both parents and the CAFCASS / ISW report.  The Court will hear oral evidence from all parties that have provided written statements (if necessary).  How long a hearing takes depends on the issues in the case and how much evidence there is.  It could last anywhere from 2 – 5 days.
7. The Court will make an order at the end of the final hearing, granting or refusing permission for the child to move abroad.
8. It is rare but a final order can be appealed in limited circumstances. Absent an appeal, the final order will be implemented.

Here is a list of some of the professionals who are or may be involved with a relocation application.

• Solicitor – We will be your first point of contact.  We will you advise you on the strengths, weaknesses and best way to present your case from beginning to end.  We will help select the best barrister for you.  We will draft your statement and attend all hearings with you.  We aim to provide continuous support and practical advice throughout the proceedings.  We understand the emotional strain that comes with these proceedings and can suggest a number of therapists, counsellors and other professionals to ensure you have all the support you need.
• Barrister – Your barrister will represent you in Court.  They are in Court most days and so are well-placed to advise on how your case may be best presented in Court.  At the FHDRA, usually only the barristers will speak (unless one party is representing themselves, in which case they will speak).  At the final hearing your barrister will present your case, will ask you some questions on your statement and will cross-examine the other party on their statement. You will not have day-to-day contact with your barrister but they will usually review key documents like your statement and it is normal to have a meeting known as a conference with them before Court hearings.
• CAFCASS (Children and Family Court Advisory and Support Service) – CAFCASS are a specialist team of social workers who may become involved in family Court proceedings at the request of the Court. Their usual role in relocation cases is to perform safeguarding checks and, if directed by the Court, to prepare a section 7 welfare report.  The safeguarding checks involve checking with the police and local authority that there are no known safety concerns or welfare risks with respect to your child.  The section 7 report will be written following the CAFCASS officer meeting with your child and with you and the other parent.  You will not be charged for the CAFCASS officer’s time or their report.
• ISW (Independent Social Worker) – Some parents prefer to pay an ISW rather than have a CAFCASS officer appointed and request this direction at the FHDRA.  There are a number of reasons why an ISW rather than a CAFCASS officer may be appointed.  For example, a parent may want to know who they and their child will be meeting with.  ISWs will charge for their time and for producing a report.

Will I have to speak at Court?

If you have a solicitor and a barrister, you will usually only need to speak at the final hearing (not at the FHDRA). It is at the final hearing that you will give your evidence, in response to questions asked by your barrister (known as examination-in-chief) and in response to questions asked by the other party’s barrister (known as cross-examination). If one party cannot afford a solicitor or barrister, they will usually need to speak at Court themselves, at both hearings, because they will be performing the role of the barrister.

No. This would amount to child abduction. If your child’s other parent takes your child abroad without your consent, they will have ‘abducted’ the child.  This can result in Court proceedings in England and in the country they are in to secure the safe return of your child to England.  It can also result in criminal proceedings.

If you are concerned that your child may be taken abroad without your consent, you can file an urgent Court application.  You can apply for your child’s passport to be given to you if you do not have it or, if you think the other parent may be about to travel imminently, you can urgently apply for alerts to be raised at ports to stop them.

Evidence

The judge will have:

• your statement
• the other parent’s statement
• the CAFCASS or ISW report and
• any other evidence provided in the final hearing bundle.

At the final hearing, the judge will usually hear oral evidence from you, the other parent, the CAFCASS officer or ISW. If any other statements have been filed, for example, by a grandparent or other carer, the judge may also hear oral evidence from them.

Your position will be put forward in your statement and in your oral evidence. You will consider your child’s position in your statement but their wishes and feelings will also be assessed by the CAFCASS officer / ISW.That is one of the primary purposes of this independent, third party report. It is not common for a judge to hear from the child directly but this can happen depending on the circumstances of the case and the age and wishes of the child.

Legal principles

The judge’s paramount consideration is the welfare of your child. Whether a move abroad will benefit or have a negative impact on the welfare of your child will be considered in light of all the evidence presented, often with reference to the ‘welfare checklist’, and also to relevant case law. The cases set out below are generally considered to be the key cases in relocation applications:

• Payne v Payne [2001] EWCA Civ 166
• MK v CK [2011] EWCA Civ 793
• Re F (A Child) [2012] EWCA Civ 1364
• F (A Child) (International Relocation Cases) [2015] EWCA Civ 882

At the end of the final hearing, a judge will make a final order granting or refusing permission to relocate your child.