Taking a child to live abroad
It is now increasingly common for one parent to want to take their child to live abroad with them, either at the time of separation or later on. This can cause great tension within families.
A parent needs the permission of the other parent, all persons with Parental Responsibility or the court to take a child to live abroad. This type of court application is known as a ‘relocation application’ or an ‘application for leave to remove’.
As with child abduction, steps can be taken in advance to reduce the likelihood of a successful relocation application.
Similarly, the prospects of successfully obtaining permission to relocate a child are significantly increased by careful planning and preparation.
We can and routinely do act for either party in such cases.
I am the parent with primary care of our child and moved abroad to get away from a bad situation. I now find I am accused of abduction and risk criminal proceedings. It seems so unfair.
A lot has changed since the Hague Convention was first introduced. It was then rightly intended to stop the non-resident parent, perhaps frustrated at the lack of contact, from snatching the child. It worked well and appropriately. However over the years the abducting parent has become increasingly the primary 'residential' parent, perhaps feeling isolated in another country which is perhaps the country of the other parent, perhaps unsupported financially, without family nearby, perhaps badly treated with domestic violence, and being unable in reality to apply to relocate. Such primary residential parents then take a child permanently abroad, often being unaware of the seriousness of doing so or indeed without even knowing of the need for permission. Having done so, they then find that the full panoply of international law, courts, police, criminal sanctions are against them with an immediate return to the country from which they fled, often feeling, and actually being, in a worse situation than they were before they left.
The appropriate response is not to abduct but to obtain permission or a court order to relocate. However there are very different criteria for relocation across the world. This situation needs realistic appraisal. It can often work unfairly. Some countries are very strict and may not allow relocation.
Equally there are still, sadly, too many child abductions away from the primary residential parent, especially to non-Hague convention countries. Sometimes the child goes missing altogether or for many years. Sometimes the courts of the country to which the child has been abducted will not assist in any return and perhaps even transfer custody to the other parent, the national, often the father. Some parents have had to take drastic and dramatic steps to recover their children, even after many years apart. Genuine child abduction is still a major problem. Many countries are not doing enough or anything to secure the return of abducted children.
Is it true that I will commit a criminal offence if I take my child out of the country or keep the child in another country without the consent of the other parent?
Not necessarily. In this country, it is only a criminal offence to take a child out of the country without the request permission. There is currently an inconsistency between the criminal and civil offence of child abduction in this country when the perpetrator is the child’s parent. Whereas the 1980 Hague Convention relates to both wrongful removal and wrongful retention of children, a criminal offence under s 1 of the Child Abduction Act 1984 is not committed when a parent lawfully removes a child from the UK but then retains the child beyond the agreed deadline. Accordingly only wrongful removals are a criminal offence in this country. If you commit a wrongful removal the matter can be referred to the police and parents are frequently prosecuted for this offence. Being found guilty carries a risk of a prison sentence!
There is also a risk that your child may be taken from you and handed to the other parent or to another suitable relative until the possible return of the child and/or future care has been resolved. If there is no suitable adult to look after the child, as a last resort the local authority may be asked to take the child into care although this is rare.
Upon your return to the child’s country of residence, the police may take passports and other travel documents from you to prevent the risk of further abductions. These will not normally be returned until the arrangements for the future care of your child have been resolved.
It is irrelevant if you are the parent with whom the child mainly lives, perhaps solely lives and/or you are returning to your home country and/or the other parent’s physical or financial behaviour towards you is making your life intolerable. Return of the child will still be ordered although safeguards for you and your child will normally be put in place for you on your return.
Now our relationship has broken down, I want to leave England and relocate permanently to another country. If our child is living with me, can I just leave?
No. You must obtain the permission of the other parent and anyone else with custody rights before you take the child abroad permanently. If not, you will probably find yourself embroiled in child abduction proceedings.
If the other parent is not willing to give his or her permission, you must obtain permission from the Court. This will not be granted if the only reason for your wish to move to another country is, in reality, to prevent the child’s other parent from having regular contact with your child. Equally you may well be given permission to relocate by the court if the only real reason for the other parent’s refusal was to create difficulties for you as the primary residential parent.
Most often it is a finely balanced decision about relocation. These are some of the toughest, hardest and most emotional issues facing international families.
What do I have to show to succeed in a relocation application?
To succeed in an application to relocate to another country with your child, you must prove to the Court that you have carefully considered the move and that the relocation is in the best interests of your child. You must show that you have considered schooling arrangements for the child and that you have found a suitable home where you could live. You must provide a detailed and thorough plan to relocate, including how often your child will see the other parent, and where, how travel will be funded, what support network you will have, and how your child’s medical needs will be met.
The English court will expect the parent seeking to relocate to make substantial and generous proposals for contact for the left behind parent, sometimes including the costs of travel and including the making of an order for contact in the other country. This requires cooperation of lawyers in each country but is a necessary and expected cost of the relocation.
Permission to relocate has historically been often given by the English courts but a change in case law in mid-2011 has made it harder, with a greater emphasis now on the best interests of the child. Previous law had tended to give priority to the wishes of the parent with whom the child was primarily living.
A successful application will depend on very good preparation and careful planning of both the proposed move abroad and the proposed application for permission. It is a quite technical area of the law with judicial guidelines. Consult a specialist lawyer in the very early stages of the planning.
The other parent has given me permission take our child abroad permanently. Should I obtain this in writing?
Definitely. It is very wise to do so. It is then a permanent record. It can be evidence if any allegation of abduction is made subsequently. In certain circumstances it may be wise for the permission to state that it is given after legal advice. Some countries may require evidence of permission of the other parent to move to that country. These matters should be discussed with a lawyer.
When do these relocation applications tend to arise?
Applications to relocate permanently abroad with a child often arise within international families on parental separation when one parent has come from another country and wishes to return to their home country. It may be that they want to be near family, to recommence employment, or just to be at home, and wishes to take the child. Secondly, it arises sometime after parental separation when the primary resident parent has a good opportunity to seek employment abroad including to improve living standards for the parent and child. There may be requirements made by international employers for their employees to move countries, and the parent wants to take the child with them. Even more problematic are the so-called lifestyle relocations, when post separation one parent has met someone, perhaps has already become engaged or married, and wants to move to the other person’s country - or the parent simply wants to move abroad for a better lifestyle, invariably a warmer climate!
In all of these situations, the inevitable consequence of the relocation is that the left behind parent has dramatically reduced opportunities for contact and ongoing involvement in the child’s life, education and upbringing and often a much-reduced relationship with the child. This can vary from state to state, bearing in mind travel arrangements, flight times and even time zone differences. The child can risk losing the present involvement with grandparents or other family members, schools and friends, sports or musical cultures, language and other elements which may be important for the child.
What is the procedure?
If permission to relocate is not given by the other parent, an application is made to the court for permission (also known as 'leave') to remove the child permanently from the jurisdiction of England and Wales. It is known as 'leave to remove' or 'child relocation'. With many international families within England, these applications are quite frequent.
I have heard that England is very liberal and generous in allowing relocation applications, in contrast to other countries. What is the position?
Until mid-2011, English relocation law had hardly changed over several decades, despite massive changes in parenting and international families. Generally, provided the primary residential parent had good plans, well researched, affordable, allowing good, although inevitably lesser, contact with the other parent and it was not prompted by maliciousness to the other parent, leave would normally be given to relocate. Of course the court would endeavour to make sure that good alternative contact arrangements are put in place for the other parent, but this would not stop relocation.
But now the court will look at what is the best interests of the child. It will naturally look at what has been the caring arrangements for the child but if there has been any real element of jointly looking after the child, the court will now be more reluctant to allow a relocation.
Many other countries across the world are restrictive in granting leave. Some are, frankly, highly restrictive and hardly ever give permission, especially to a non-national parent seeking to leave. Other countries permit relocation but place much greater weight than England on the impact on the left behind parent, the child’s grandparents and other wider family and the effect on family life. Some countries give greater weight to the voice of the child. Different approaches abroad can be of relevance if on a return after a child abduction the primary residential parent then seeks to relocate and finds it being refused.
There are no international laws on child relocation, in contrast to child abduction.
