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Relocation of Children after separation
- AuthorNameeta Gujral
These days more and more people are spending time abroad, whether they are 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 children abroad for an extended period, or even indefinitely. However, if the parents have separated, there is a possibility that this could result in disagreement, especially if one parent 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 is done amicably, and arrangements are put in place to ensure the children spend a reasonable amount of time with each parent, then there should not be a problem – regardless of whether one party moves to an EU or non-EU country. However, if the process is rushed, is not given enough thought, or is done out of spite, there could be serious consequences further down the line, especially for the children.
Living arrangements settled outside Court require a lot of co-operation between the parents. So, generally, ex-partners tend to live relatively close to one another to ensure the children have adequate contact with each parent. Naturally, this is tough to achieve if one parent wants to move abroad with the children. 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, in a few months’ time we are exiting the EU, and restrictions on both residency and free movement between England and Wales and the EU may change dramatically. It is 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 are moving abroad and want to take the children with you, or if you are the one being left behind in England and Wales, you need to know your rights – not just for yourself, but for the sake of your children, too.
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 children move abroad with your ex, or stays in England and Wales with you.
Presently, by default, mothers have parental responsibility. Fathers only automatically gain these rights if they are 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 do not automatically have parental responsibility unless:
- The court grants you parental responsibility
- You have entered a formal agreement with the child's mother using the appropriate documentation.
You have parental responsibility, now what?
If you have parental responsibility, your ex can not take your children out of the country to live abroad legally unless you give your permission.
If you are happy with their new living arrangement, it is wise to get an English court order highlighting the terms of the agreement. This should include the amount of time you will have when the child moves abroad. Once completed, get a "mirror" order from the EU country the child is moving to. This is essential, as all issues of custody are then dealt with by the laws set in the country where the child is living.
What if you don’t want your child to move?
If you do not want your child to move abroad, your ex-partner needs to apply to the court for an order to permit the move. If they decide to press the issue, always get 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 England and Wales and the other EU countries that make it easier to ensure the safe return of your child to England or Wales if they have been taken without consent.
If you are a parent handling a child abduction case, make sure you:
- Seek advice from a solicitor who specialises in this field
- Make an application to the court as quickly as you can.
The sooner you make your application, the quicker your child may be returned. Once your child is back in England or Wales, the court needs to decide whether it is appropriate for your ex to move abroad with your child on a more permanent basis.
The case in non-EU countries
Outside the EU, things can get more complicated. You can come to an arrangement (in writing) concerning how often the children can visit, who pays for travel costs, and how much say the parent left behind has over their day-to-day concerns such as education, etc.
However, it will also 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 this agreement is acted upon. Put simply, even if you do get a written agreement in place before the children move abroad, there is no guarantee that it will 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 unless you have clear proof that the welfare of your children are at risk.
If your ex-partner is planning to take your children abroad, speak to a family law specialist as soon as you can.