Relocating Overseas with your Children
Now that you and your ex-spouse are divorced, you may be planning to relocate overseas, and considering bringing your children with you. The reasons that one chooses to relocate overseas with children post-divorce may vary. Perhaps you have been offered new employment overseas, or you are moving back to your home country to be closer to your other family members. You may even be in search of a fresh start at life. Whatever your reason for relocating overseas with your children, there are a wide range of factors that you need to carefully consider before purchasing a plane ticket for your child and getting on that plane. If you are considering relocating with your child internationally, it is a good idea to seek legal advice from a family law specialist before you take any steps to remove your child from the jurisdiction.
This article sets out briefly the law on relocation with children out of the UK. Here we discuss the factors that the court takes into account when considering international relocation applications and provides general guidance on the steps that you can take if you wish to relocate with your child internationally. However, it is important to note that every case is different. This article only serves as a guide and you should legal advice from a family law specialist at the earliest opportunity.
Will I need to seek permission from my ex-spouse?
Although you and your ex-spouse are divorced, both parties still have parental responsibility for the children. Parental responsibility is the rights, duties and obligations a parent has to the child. If there is no child arrangement order in place, you must seek written consent and agreement from the other parent to relocate overseas with children. It is important that the consent and/or agreement be clear, specific and in writing. If there is a child arrangement order in place, you must apply for permission from the court. Failure to seek permission or consent could amount to wrongful removal / child abduction. The other parent could then bring an application for the summary return of your children under the Hague Convention on the Civil Aspects of International Child Abduction.
The law on relocation of children internationally
The court’s paramount consideration is the welfare of the child (overarching guidance from the case of Payne v Payne). This applies to relocating overseas with children.
In considering the welfare of the child, the court will regard to the welfare checklist set out in Section 1(3) of the Children Act 1989 (see below). The court will adopt holistic evaluation of each of the abovementioned factors in considering what is in the best interests of the child. In the most recent case of Re K (A Child)  EWHC 488 (Fam), the court expanded upon the welfare checklist and the holistic approach and set out what is described as the “FKC Payne composite” to assist the court in its consideration of the welfare checklist and what is in the best interests of the child, as follows:
- Ascertainable wishes and feelings of the child in light of their age and understanding.
- The child’s physical, emotional and educational needs.
- The likely effect on the child of the change in circumstances as a result of the court’s decision, including:-
- Changes to housing, schooling and relationships if they remain in England;
- The feasibility of relocation plan and how likely it is to be implemented;
- The positive effects, if any, to the removing parents ability to care for the child if they move abroad;
- The positive and negatives about the proposed country in terms of environment, education and links with family’
- The impact on the child of moving permanently to another country in relation to their relationship with the left behind parent and other extended family;
- To what extent can that be offset by on-going contact and extension t other relationships in the new country?
4. The child’s age, sex, background and any characteristics which will be relevant to the court’s decision.
5. Any harm the child has suffered or is a risk of suffering, within this:
- The impact on the child of the change of their relationship with the left behind parent;
- How secure is that relationship now and how likely is it to endure and thrive if the child moves;
- How realistic are the proposals for maintaining contact;
- The impact on the removing parent of having to remain in England, contrary to their wishes;
- The consequent impact on the child;
- The impact on the left-behind parent of the child moving;
- The ability of either parent to provide care for the child
- To what extent will the loss of contact with the left behind family be made up for by extension of contact with the family in the new country.
6. Capabilities of the parent, or other persons that the court finds relevant, to meet the child’s needs:
- How the parents are currently meeting their child’s needs;
- Whether the application to relocate is wholly or in part motivated by a desire to exclude or limit the left behind parent’s role
- Whether the left behind parent’s opposition to the move is genuine or motivated by a desire to control or other malign motive;
- Whether the parent will be better able to care for the child in the new country other than England;
- The role the left behind parent can play in the future.
7. The powers available to the court in the given proceedings:-
- Whether provision of funds or frequency of visits can be imposed;
- Whether court orders can be made in the other country to allow reciprocal enforcement.
Ultimately, the most important consideration is what is in the best interests of the child. Each case will be decided on its own facts.
What should I do next?
- Relocation Proposal: Start by putting together your relocation proposal. At this juncture, you should seek legal advice from a family lawyer who specialises in international relocation of children to advice you on preparing an application to the court to seek permission for leave to remove a child from jurisdiction.
- Have a clear, well-thought out and practical proposal with regards to your children’s living, educational and healthcare arrangements upon relocation. You can start to research schools in or around the area that you will be living at upon relocation, provide details of the schools and any future educational plans. You can also start gathering information on the proposed country you will be relocating to in terms of the living environment (safety, ease of integration, any similarities to current living environment), education system of proposed country and ties to family members. You want to show that you have taken all steps to ensure that your child will integrate with ease in the proposed country you are relocating to.
- Your relocation proposal must be genuine and child-focused. It is unlikely that the court will give you permission to relocate internationally with your child if it appears to the court that the underlying reason to relocate is to distance your child from your ex-spouse, or any other reason that is not in your child’s best interests.
- Make plans for your ex-spouse to keep in contact – despite relocating to another country, both you and your ex-spouse still share parental responsibility of your child. It is important that you consider allowing your child to keep in contact with your ex-spouse, perhaps via video calls, text messages etc.
- Include in your relocation proposal plans for access of the other parent to your children. You should demonstrate a willingness to promote the relationship between your children and your ex-spouse. You should include travel plans for your children to visit your ex-spouse or arrangements for your ex-spouse to visit them where you are now based. If financially feasible, you can also include plans to split the travel finances.
- You also want to consider and plan for what would happen if the court does not grant the leave to remove. You should have considered all options and have a back-up plan for your child’s living, educational and healthcare arrangements if that happens.
2. Try to Negotiate: If you and your ex-spouse are willing to, you could try to negotiate and reach an agreement with your ex-spouse. Such alternative forms of dispute resolution in the UK include mediation and collaborative law. This would allow parties to formulate their own agreement and avoid the heavy costs of litigation and the court process.
3. Court as a last resort: If you and your partner are not able to reach an agreement, you will need to apply for the court’s permission to relocate your children from the UK. You will have to make an application for leave to remove under Section 13(1)(b) of the Children Act, if child arrangements order is in place, or a specific issue order or child arrangements order with permission under Section 8 of the Children Act, if no child arrangements order is in place. A family lawyer specialising in international relocation will be best placed to advice you on the steps that you will need to take.
It is important that you seek legal advice when preparing your relocation application to ensure that all factors in your relocation proposal have been considered. It is prudent to seek advice before you begin discussions with your former spouse; there may be some aspects to your relocation that you have not considered.
What if my ex-spouse has taken my children abroad without my consent?
If your ex-spouse has removed the children from the UK without your permission, this may amount to wrongful removal. The Hague Convention on the Civil Aspects of International Child Abduction allows you to make a Hague Convention application for the return of your children if they have been taken to certain countries that are signatories to the convention. If they have been taken to a country which is not a signatory to the convention, then there are other legal options to ensure their return.
If you fear that your former spouse may try to take the children overseas without your permission, we can help you obtain an emergency order from the court. You need to seek advice urgently in either of these situations.
For advice on these issues, please contact the managing partner, Alexandra Tribe at [email protected] or telephone us on 0203 096 7169. This article was written by Hilary Rupawalla, a paralegal in our Singapore office. You may want to read more about children law issues and can find many other advice articles here.