23rd Feb 2021

Divorce: Can I Relocate Abroad with the Children?

By Alexie Bonavia

Divorce: Can I Relocate Abroad with the Children?

 

Many separated parents want to relocate abroad with their children after a divorce or separation. And in many ways the pressures of the recent lockdowns have led to many more parents seriously considering this. In this blog FLiP Associate Alexie Bonavia explains the important legal steps a parent needs to take if they plan to relocate abroad with the children after divorce. 

The Prime Minister’s most recent address mapping out the UK’s route out of lockdown (found here) has given us the opportunity to look towards new horizons and the start of returning to a sense of “normality.” However, for many separated parents lockdown may have triggered thoughts of a new start or direction in their lives, possibly including relocating abroad with their child or children. These parents will need to carefully consider this decision against the backdrop of the legal framework to ensure they maximise everyone’s best interests.

The various lockdowns have given separated parents the opportunity to re-evaluate their lives and where, geographically, they want to be permanently based. In many cases, having been through a considerable period of time without seeing family and loved ones, the prospect of having an invaluable support network within your vicinity has become increasingly important.

On the other hand, there will be those separated parents who now realise that they do not need to live in a specific country for work purposes and, therefore, now they wish to relocate to another country with their child as remote working gives them the freedom and flexibility to do so – particularly those who do freelance work.

Whatever your exact motivation, any proposed permanent relocation with a child outside the UK requires detailed consideration and planning. Crucially and most importantly, it requires the consent of the other parent or anyone else with Parental Responsibility for the child.

If you are on relatively good terms with your ex-partner, then the very best and most cost-effective solution is to try and reach a sensible agreement directly between yourselves. This is particularly the case now bearing in mind the current court backlogs due to Covid-19. If you reach a stumbling block on a particular issue(s) then consider discussing this in the first instance with a mediator. A forum like mediation allows both parents to have their voices heard within the discussions – often a lack of communication is the main reason why parents feel unable to sort matters between themselves.

If mediation does not seem appropriate, then your solicitor will be able to assist in advising on other suitable and creative options for narrowing down the issues between you and reaching an agreement. These options may include arbitration or scheduling a round table meeting, for example. With a big focus and drive towards resolving family issues outside the court, there are numerous ways and means of reaching an agreement without the need to make a formal application at court. Self-evidently, there will be times when a court application is the only option (as discussed below); however for the majority of cases, it is always best for the parents to have full control over what is in their children’s best interests as they know their child best.

To clarify:

A parent who wishes to relocate abroad with their child after divorce or separation will need to obtain permission from the other parent (or anyone else with Parental Responsibility for the child) or they will need to apply to the court for an Order granting them permission. This type of application is called a “leave to remove.”

If a court application is made, then the court must consider the welfare of the child and what is in the child’s best interests. The judge will generally grant permission unless the reasons for the move are unreasonable and there are compelling reasons to refuse the application. This will include assessing the parent’s plan, the arrangements for contact between the child and the left behind parent and the impact of refusing permission upon the child. As set out above, the devil is in the detail when it comes to preparing for leave to remove applications. The more detailed and thought through your application is, the better the chance of success. This will include setting out all necessary information in respect of the child’s schooling, suitable housing arrangements, support network etc. If there are well thought out plans with good reasons given to the court for relocation, it is more likely that the court will allow relocation. However, this does not mean that the parent opposing the relocation will not contest the relocation and set out in detail their exact reasons for refusing their permission. The court will hear evidence on both sides and decide in accordance with the specific facts of the case whether the proposed relocation abroad is in the child’s best interests.

What happens though if a parent unilaterally makes plans to relocate abroad with their child without discussing this with, or getting the consent of, the left behind parent?

Concerns about abduction:

Abduction is the action of forcibly taking a child away against their will and without the necessary consent of either the other parent (or those with Parental Responsibility), or the court. It is worth noting that any removal of a child from England & Wales is child abduction unless permission has been given by the court or by virtue of the written consent of the other parent (or any other individual who has Parental Responsibility for the child). Child abduction is a serious offence which can carry a prison sentence.

Before the UK left the EU, parental child abduction was dealt with under the Brussels IIA Regulation which regulates the rules of jurisdiction for parental responsibility, child protection and child abduction within the EU. The UK now solely relies on the 1980 and 1996 Hague Conventions: this means the UK has lost some of the protection and benefits which formed part of Brussels IIA. At present, the UK has not modified or changed its laws to offer greater protection in line with Brussels IIA – hence the importance of a parent obtaining urgent legal advice if they have genuine concerns about an abduction.

It is always best to take the necessary preventative measures in order to stop a potential removal which would include for example, obtaining a prohibited steps order from the court. This is particularly the case now with many suggesting that child abduction cases will not be dealt with as swiftly as required under Brussels IIA and fears that custody and child abduction disputes will become complex and costly. It remains to be seen whether or not the UK will implement the same provisions as Brussels IIA into domestic law.

To clarify:

If you have genuine concerns about a potential child abduction, ensure you act quickly and find a specialist family lawyer to assist. If there is an immediate risk, then port alerts will be required. If there is sufficient time to secure an ex-parte application at court (for an order prohibiting the removal of the child from the jurisdiction), then this should be actioned as quickly as possible. Failure to act swiftly may result in your child being taken out of the jurisdiction with serious difficulty in locating the child and securing their return due to the recent legislative changes in light of Brexit.

At Family Law in Partnership our experienced family and divorce lawyers will guide you through the decisions and discussions involved in any proposed relocation abroad, offering sensitive, tailored support to resolve the issues you may face.

Alexie Bonavia is an Associate at FLiP. Alexie advises clients on all aspects of family law, including divorce, pre and post nuptial agreements, financial settlements and cases involving international complex trust structures. She also advises parents on children matters including on national and international relocation cases, intractable contact disputes and parental alienation. Alexie’s experience includes cases involving significant assets and those with an international element. Alexie is a native Spanish speaker.