International travel brings people from different countries together through relationships, marriage and raising families. However, legal implications can arise if the relationship ends, minor children are involved, and one parent wishes to move to another country with the child or children.
Reasons for relocating might include a desire to return to a “home” country, improving finances through a reduced cost of living, accepting a job abroad, or living with a new partner.
How far can a parent move with shared care
If a parent wishes to relocate with their child and they share care of their child(ren) with an ex-partner, there are no set restrictions on moving if they stay within the country. It’s best to communicate your move with your child’s other parent in the first instance and seek to work any disputes at mediation.
The other parent has a right to apply to the court to challenge the move and the court will consider if this is in the child’s best interest. The court may grant a child arrangement order which states where a child lives, how much time they spend with each parent and what type of contact takes place.
If a parent wishes to move abroad with their child, it’s important to get express permission from the other parent.
Do I need permission to relocate abroad with a child if I am living in the UK?
A parent can move abroad with their children if everyone with parental responsibility provides consent (generally the other parent). Without this, the children cannot be permanently removed from the UK (without a Court Order providing permission to take the child permanently out of the jurisdiction), as this would be child abduction – a criminal offence in the UK. The other parent may take appropriate legal steps to prevent a move.
It’s essential to find out the legal position in the intended countries jurisdiction regarding the recognition and enforcement of the English order and whether obtaining a mirror order is required or not.
If consent to relocate is not given by the other parent, it’s necessary to apply for permission from the family court, known as “leave to remove”.
Before the leave to remove application can be submitted to the Court, it is compulsory for the parties to attend mediation, unless there is an exemption, such as in a case where domestic abuse features. Mediation can help resolve disputes with ex partners regarding child arrangements and where the child can live. Many cases are resolved here without the need for a lengthy Court process. You can find out more about the mediation services offered by Buckles on our dedicated service page, listed on the left-hand side of the page.
If an agreement can’t be reached in mediation, then the leave to remove application will be submitted to a Court local to where the child currently lives. The Court will decide whether it is appropriate for the child to relocate based on the following factors:
- The child’s age
- The child’s welfare
- The relationship the child has with the other parent
- The current arrangements for the child to spend time with each parent
- The motives of the parent wishing to move
- If there are any safeguarding concerns about the child
If a court decides you can’t relocate with your child and you proceed anyway, this is seen as international child abduction and is a serious criminal offence.
International Child Abduction
Child abduction occurs when a child under 16 is removed from the country where they live without permission from those with parental responsibility, or the Court. Retaining the child in another country beyond any period agreed also constitutes wrongful retention.
In many countries, child abduction is a criminal offence. In England and Wales, if a parent has a Court order with a provision that the child lives with them (Child Arrangements Order), then they can take the child out of the country for up to 28 days without the need for consent from those with parental responsibility, unless there is an order in place expressly prohibiting this. However, if there is no “live with” order in place, it is a criminal offence to take the child out of England and Wales for any length of time without the written consent of all holders of parental responsibility or the Courts’ permission.
The Hague Convention on Civil Aspects of Child Abduction of 1980 is an international legal instrument signed by many countries, intended to ensure the return of the child to their country of habitual residence before the abduction.
I think my ex is trying to leave the country with my child, what can I do?
You should seek legal advice from a specialist family lawyer as soon as possible about measures that can be taken to prevent the abduction. An application can be made to the Court for a Prohibited Steps Order to prevent the other parent from removing the child.
It’s best to compile any evidence you have such as text messages or documents that will help prove that your ex is trying to take your child abroad without your consent.
Among other measures, it may be possible to make an application to the Tipstaff (the High Court Enforcement Officer) or to the police so that a “port alert” is put on all ports of entry and exit to the UK. You will have to prove that there is a real and imminent risk that the child will be removed.
My ex has left the country with my child without my consent, what do I do?
If you find yourself in this position, you should seek advice from a specialist family lawyer as a matter of urgency. They can help establish your parental rights towards the child and the most appropriate method to achieve the child’s return. Begin working with your solicitor to collect evidence to prove your child has been taken such as text messages, emails or documents.
It is also advisable to contact a lawyer from the country where you believe the child has been taken to, in order to ascertain the legal position in that country.
I’m being accused of child abduction, what do I do?
It is very important that you speak to a specialised family solicitor. There may be grounds in your case to oppose the claim of abduction and it is important that these are considered by an expert in the field. The limited grounds under which you can oppose a Hague Convention application for child abduction are:
- The other parent gave their consent to the child’s removal or retention
- The parent left behind after the removal or retention has accepted the child does not want to return, and they have attained the age and degree of maturity appropriate to have their decisions considered
- There is no child arrangements order being breached
- The other parent was not actually exercising their parental rights
- The child is now settled in their new environment
- The child would be exposed to physical or psychological harm, or otherwise placed in an intolerable situation, if the child was made to return to the resident country
These are not straightforward grounds, and they must be thoroughly proved to the Court making the decision. The aim of proceedings initiated under the Hague Convention of 1980 is the return of the child to their country of residence, not to decide with whom the child is to live. This decision will have to be made by the country in which the child is habitually resident.
Can I take my child on holiday abroad without my ex-partners permission?
You may not need to inform your partner about your holiday plans depending on parental responsibility. If the other parent does not share parental responsibility, there is no consent needed to take your child on holiday.
Mothers are automatically granted parental responsibility when a child is born, however fathers will only have this if:
- The mother and father were married at the time of the child’s birth
- His name is on the birth certificate (effective from April 2022)
- A parental responsibility order has been granted by the Court
- The father has a parental responsibility agreement with the mother
If both parents have parental responsibility and there is no Child Arrangements Order in place outlining where the child lives, both parents will need to consent for one parent to take the child abroad. If you take your child abroad without the consent of the other parent, this may be considered child abduction.
