As a family lawyer, one of the most emotionally charged questions I encounter is: “Can my spouse take my children to live abroad?” Whether during or after divorce proceedings, the prospect of one parent relocating internationally with the children can be very distressing. Understanding the legal framework surrounding international relocation in England is crucial for parents facing this situation.
The Legal Framework: Understanding Leave to Remove
Under English family law, a parent cannot unilaterally remove a child from the jurisdiction of England and Wales to live abroad without either the consent of the other parent or the permission of the court. This principle is outlined in the Children Act 1989, which emphasises the welfare of the child as the paramount consideration.
If one parent wishes to relocate permanently with the child, they must apply for a “Leave to Remove” order through the family courts. The application will be determined based on what is in the child’s best interests, considering various factors.
Factors Considered by the Court
When assessing a relocation request, the court applies a holistic approach, considering:
The Welfare of the Child – The court’s primary concern is the child’s wellbeing, including emotional, educational, and social stability.
The Applicant’s Plan – The parent seeking to relocate must provide a well thought out plan, including details on accommodation, schooling, healthcare, and financial stability in the proposed country.
The Motivation of Each Parent – The court will evaluate whether the request is made in good faith or if it is an attempt to distance the child from the other parent.
The Impact on the Left Behind Parent – The court will assess the effect of relocation on the child’s relationship with the non-relocating parent and whether adequate contact arrangements can be maintained.
The Child’s Wishes and Feelings – If the child is old enough to express their views, these will be taken into account, though they are not determinative.
The Application Process
A parent wishing to relocate with their child must file a formal application under Section 8 of the Children Act 1989. The process typically involves:
Mediation – Before court proceedings begin, parents are encouraged to attend mediation to try to reach an agreement.
Filing – The relocating parent submits an application form to the family court.
Court Hearings – The court will schedule hearings to assess evidence from both parties.
Expert Reports – In some cases, the court may seek reports from CAFCASS.
Final Judgment – The judge will make a decision based on the child’s best interests.
Preventing a Child from Being Taken Abroad Without Consent
If a parent fears that their child may be taken abroad without consent, they can take several legal steps:
- Prohibited Steps Order (PSO) – This is an order under the Children Act 1989 that prevents the other parent from taking the child abroad.
- Port Alerts – If there is an immediate risk, a parent can notify the police and request an alert at UK borders.
- Hague Convention on International Child Abduction – If a child is unlawfully taken to a country that is a signatory to the Hague Convention, legal mechanisms exist to seek their return.
Defending Against a Leave to Remove Application
If you oppose your ex-spouse’s request to relocate with your child, you will need to present a strong case demonstrating:
- How the move would negatively impact the child’s wellbeing.
- The importance of maintaining a close relationship between the child and both parents and any paternal or maternal extended family.
- Any weaknesses in the relocating parent’s proposed plans.
Conclusion
International relocation cases are among the most complex in family law, as they involve balancing parental rights with the child’s best interests. If you are facing a situation where your spouse wants to take your children to live abroad, seeking legal advice as early as possible is crucial. Whether you are applying for permission to relocate or opposing such a move, professional guidance can help ensure the best possible outcome for you and your child.
At Gardner Leader we have a Team of Family Law experts with experience in Children Act applications who can help navigate the complexities and ensure the best possible outcome. We understand the challenges, and we can help manage, support and guide a parent through the process to aim to provide peace of mind. Contact Stephanie Buckeridge or read more information regarding our Family Team services.