A separation or divorce often involves a house move and lots of change. Some parents decide to move out of the UK with their child, partly prompted by their separation or divorce.
Family law solicitor Angelique Holm receives many enquiries from parents asking whether they can relocate overseas with their child after their separation, and from worried parents asking how to stop their child from moving overseas.
Contact HopeHolm for expert relocation legal advice after a separation or divorce
The law on moving overseas with your child after separation or divorce
The law on moving out of England and Wales after a separation or divorce is complicated. You should not assume that you can unilaterally decide to take your child overseas to live. Equally, if you are the parent objecting to your child’s move, there are steps you can take to stop your child from moving to live overseas.
The law says:
- You can take your child to live outside England and Wales if you have the agreement of the other parent and anyone else with parental responsibility for your child.
- If you cannot get the necessary agreement/s to take your child overseas to live, you can ask the court to make a relocation order authorising your child’s relocation.
- A parent who opposes their child being taken to live overseas can ask the court to make a prohibited steps order to prohibit their child from moving overseas, or can ask the court to make a child arrangement order so the child lives with them in the UK.
- If the court makes a relocation order authorising the overseas move, it may also make a child arrangement order setting out the contact arrangements for the parent remaining in the UK.
- The court decisions on your child’s future are based on your child’s needs and the court’s assessment of their best interests.
Relocation orders are for children, not parents
The court cannot stop a parent from deciding to move overseas. Adults are entitled to live where they want. However, if you want to relocate with your child and the other parent objects, the court may refuse to grant a relocation order. That leaves you with the choice of staying in the UK with your child or moving overseas on your own and having contact with your UK-based child.
Although relocation orders are for children and not parents, if you are the parent who wants to relocate, it can seem as if your ex-partner is only objecting to the planned move overseas to be difficult or to control you.
If you are applying for a relocation order for your child or asking the court to make a prohibited steps order to prevent a move overseas, it is important to focus your argument on your child’s needs and why the relocation would or would not be in their best interests.
Relocation after a separation and child abduction
If you move overseas with your child without the necessary agreement or court order, you risk being accused of parental child abduction. This is a criminal offence. In addition, the court in the country you move to could be asked to make a return order requiring you to return your child to the UK. The family court in England will then decide whether your child should be brought up in England or allowed to live with you overseas.
If you have not yet moved overseas, and the other parent fears parental child abduction, they could ask the family court to make an urgent prohibited steps order and port alert to prevent you from being able to take your child out of England and Wales.
Do relocation and child abduction laws apply to your child?
As a London children lawyer representing clients from many different countries, Angelique Holm frequently encounters misconceptions among parents about how relocation law works.
The English relocation laws will apply to your child if your child is habitually resident in England and Wales. Neither your child nor either parent needs to be a British citizen for the child law relocation laws to apply. Your child can be classed as habitually resident in the UK even if neither parent is a British citizen.
Relocating with your child to your home country
When you separate from a partner, it is natural to want to return home, where you may have extended family to help with childcare or better job prospects. Whatever the reasons behind your relocation plans, it is best to draw up a list of the potential benefits and any drawbacks. These need to be considered from your child’s perspective. For example, you may be keen to move back to your home country so you are back in a familiar place, but that may not be the case for your child. You should therefore frame your relocation application around the benefits to your child, such as exposure to their culture, regular contact with extended family, or the opportunity to learn your home language.
Relocating with your child to a new country
There may be several reasons why you want to relocate to a country that you do not have previous ties to, such as:
- A work secondment overseas or a new job.
- Your new partner lives overseas.
- The benefits of a warmer climate.
- A desire for a fresh start.
- The cost of living would be cheaper, and a house would be affordable.
Whatever the reasons for your desire to relocate, you need to base your application for a relocation order on what your child will get out of the planned move overseas, rather than focusing on the advantages to you. This means conducting research and gathering evidence on how the planned move could benefit your child.
Evidence gathering for a relocation application or to secure your ex-partner’s agreement to a move overseas
Preparation is important if you want to secure a relocation order. Whilst you may be bubbling with enthusiasm about your planned move, your ex-partner and the court will want to know why the move is best for your child and will want solid information about:
- Living arrangements.
- Schooling.
- Childcare.
- Medical cover.
- Contact with the parent remaining in the UK and with extended family.
Until you have obtained your ex-partner’s agreement to the overseas move or a relocation order, you won’t be able to finalise living or other arrangements, but you should be able to provide:
- Estate agents’ particulars of the sort of property you will be able to afford to rent or buy.
- School options with information about available state school places and the affordability of an international school or private school.
- Childcare arrangements if you will be working while living overseas.
- Medical cover so your ex-partner or the court understands the extent of state health provision or your ability to afford private health insurance for the family.
- How contact arrangements will work if the child is overseas. It is helpful to have information about flights and practicalities, to know whether you are expecting your ex-partner to travel to see your child, whether your child will return to the UK during school holidays, and how you envisage FaceTime working if there will be time differences.
How the court decides an application for a relocation order or an application for a prohibited steps order
Whether you are asking the court to make a relocation order or requesting a prohibited steps order to stop your child from being taken overseas to live, the court will carefully assess what order and living arrangements are in your child’s best interests. When carrying out this exercise, the judge will consider the statutory factors in the welfare checklist, contained in Section 1 of the Children Act 1989:
- Your child’s wishes and feelings, in light of their age and understanding.
- Your child’s physical, emotional and educational needs.
- The impact of an overseas move on your child.
- Your child’s age and other relevant characteristics, such as their health.
- Any harm your child has suffered or is at risk of suffering.
When considering these factors, the court will assess the impact of the order on the child and both parents, and how the decision will affect the parent-child relationship.
Contact arrangements with the UK-based parent if a child moves overseas
Whether you are negotiating contact with your ex or trying to present a case for why a relocation order should be made, your ex and the court will want to know how you plan to help your child maintain a relationship with their other parent. Securing your ex’s agreement to your relocation, or obtaining a court order, may involve compromises in contact, such as agreeing to more extensive holiday contact, as your former partner will not be able to see the child midweek or on alternate weekends because of the distances involved or the cost of flights.
If you reach an agreement on an overseas move or the court makes a relocation order, you should expect detailed contact arrangements, including:
- The frequency of direct contact and whether the contact will take place in the overseas country or the UK.
- Travel arrangements. For example, if the child can travel as an unaccompanied minor.
- The frequency of indirect contact, such as FaceTime.
- Arrangements to see extended family, such as grandparents.
Legal advice on child relocation overseas from a relocation solicitor
If you want to take your child overseas to live, or want to object to your ex’s plans to take your child to live overseas, it’s best to consult a family law solicitor with expertise and experience in relocation orders after parental separation or divorce.
At HopeHolm, children law solicitor Angelique Holm provides expert legal advice on the complexities of a relocation order application or prohibited steps order application and will explain how best to secure the parental agreement or the court order you need.
Angelique Holm understands that the decision to relocate with your child after a separation or divorce is a major one that requires very careful assessment and planning. It is important to do the preparatory work and seek legal advice before you try to obtain your former partner’s agreement to the move or ask the court to make a relocation order. Parental agreement or court order is more likely to be forthcoming if you have thought through all the practical and financial aspects of your planned move and your lawyer has framed your plans around the welfare checklist so there is a clear and compelling case that the move is in your child’s best interests.
Contact HopeHolm for expert relocation legal advice after a separation or divorce
Telephone 0203 488 8620, email info@hopeholm.co.uk, or visit HopeHolm Family Law.