What happens when a parent wants to move abroad and take the children with them?

Posted by Suzy Hamshaw

27-09-2018

These days more and more people are spending time abroad, whether they’re overseas on business, trying to build a new life in a different country, or just taking a long trip.

There are plenty of reasons a parent might want to take their child abroad for an extended period, or even indefinitely. However, if the parents have separated, there’s a possibility that this could result in disagreement, especially if one party feels they are being ‘pushed out’ of the family unit and that the move is done to deliberately reduce the amount of time they can spend with the children.

If it’s done amicably, and good arrangements are put in place to ensure the children spend a reasonable amount of time with each parent, then there shouldn’t be a problem – regardless of whether one party moves to an EU or non-EU country. However, if the process is rushed, isn’t given enough thought, or is done out of malice, there could be serious consequences further down the line, especially for the children.

Living Arrangements

Living arrangements settled outside court require a lot of co-operation between the parents. Sometimes ex-partners tend to live relatively close to one another to ensure the child has adequate contact with each parent. This is going to be impossible if one parent wants to move abroad with the child. Currently, there are no major barriers on movement between the UK and the EU, so it should be easy for contact to be maintained. However, bear in mind that in a few months’ time we’re exiting the EU, and restrictions on both residency and free movement between the UK and the EU may change dramatically. It’s a matter of ‘watch this space’, and if you are planning to move abroad, talk to an expert in family law who may be able to advise you on the various scenarios we may be facing once the Brexit dust settles.

If you’re moving abroad and want to take the children with you, or if you’re the one being left behind in the UK, you need to know your rights – not just for yourself, but for the sake of your children, too.

Parental Responsibility

Firstly, you need to find out whether you have parental responsibility for your children. If you do, then you legally have a right to contribute to the fundamental decisions that impact your children. This includes whether your child moves abroad with your ex, or stays in the UK with you.

Presently, by default, mothers have parental responsibility. Fathers only automatically gain these rights if they’re married to the mother. Unmarried fathers can also acquire these rights if their child was born after 1st December 2003, as long as the father is named on the birth certificate.

If your child was born before 1st December 2003, and you are not married to the mother, you don’t automatically have parental responsibility unless:

  1. The court grants you parental responsibility
  2. You’ve entered a formal agreement with the child’s mother using the appropriate documentation.

You have parental responsibility, now what?

If you have parental responsibility, the other parent can’t take your children out of the country to live abroad legally unless you give your permission.

If you’re happy with their new living arrangement, it’s wise to get a UK court order highlighting the terms of the agreement. This should include the amount of contact you’ll have when the child moves abroad.

What if you don’t want your child to move?

If you don’t want your child to move abroad, the other parent needs to apply to the court for an order. If they decide to press the issue, always get professional legal advice.

Sadly, sometimes children are taken abroad without permission from the other parent. This is known as ‘child abduction’. Fortunately, there are legal agreements between the UK and the other EU countries that make it easier to ensure the safe return of your child to the UK if they have been taken without consent.

If you’re a parent involved in a child abduction case, make sure you:

The faster you file your application, the sooner your child will be returned. Then, once the child is back in the UK, the court needs to decide whether it’s appropriate for your ex to move abroad with your children on a more permanent basis.

The case in non-EU countries

Outside the EU, things can get more complicated. It will depend on the individual laws in the country your children are now living in, and what kind of cross-border relationship there is between the two legal systems as to whether a UK order is acted upon. Put simply, even if you do get an order agreed before the children move abroad, there’s no guarantee that it’ll be enforced by the legal system in the country that the child is now living in. That can make it very difficult to challenge the arrangement.

If your ex-partner is planning to take your children abroad, speak to a family law specialist as soon as you can.


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