We take a brief look at the legal issues involved when a parent wishes to remove a child from our shores.
For many people, living and working abroad isn’t just a dream, it’s a reality. For some it will just be a temporary secondment, while a significant proportion opt for a more permanent move. Moving abroad brings with it a number of unforeseen complications however. One of these is what happens when dependent children are involved and you have separated from your partner.
Removing a child from the UK without the permission of those who have parental responsibility (or a court order allowing removal) can lead to a breach of both Civil and Criminal law. This calls for great care to be exercised by all involved.
Where a Child Arrangements Order (CAO) is in force then a child can be removed from the UK for a period of less than one month. If there is no CAO in place and a parent removes a child from the UK without the consent of the other parent (or the permission of the court) they will have made a wrongful removal. This entitles the other parent to apply under the Hague Convention for the child’s immediate return. Furthermore the removing parent could face a charge of child abduction.
If you are separated and are planning to move abroad with your children you should liaise with the child’s other parent at an early stage. It would be dangerous to assume that agreement will be reached so you’d be unwise to wait until the last moment before seeking an agreement.
In these situations it is often prudent to seek advice from a specialist solicitor. Where face-to-face communications with your former partner are difficult a solicitor will be able to refer you to a family mediator. Alternatively they can work with you ‘collaboratively’ to find a solution without the involvement of the courts. This can save considerable legal costs.
If the issue cannot be resolved by agreement you can apply to the court for a ‘specific issue order’. This is an order to resolve a specific issue in respect of a child. However, you will need to attend an initial mediation session before the application can be made.
Where there is a fear that you will leave the country with the child without authority you may be asked to surrender your child’s passport. You could also be required to give an undertaking (a legal promise) that you won’t remove the child until the dispute is resolved. Where an undertaking has to be given it is important that specialist legal advice is taken as you could be imprisoned or fined if you breach it
The court can additionally make a Prohibited Steps Order. This is an Order preventing a party from taking a specific step in relation to a child, such as removing them from the UK.
One particularly contentious area is whether a court should give permission for a child to be permanently removed from the UK. The law has been greatly clarified by the 2015 case of F (A Child). The starting point is that an application to remove a child (and any cross application for contact) should be determined by what is in the child’s best interests. As in other areas of family law, the welfare of the child is paramount. Against this backdrop the court will consider a range of factors such as:
- Whether the application has been made for genuine reasons (rather than being motivated by a desire to exclude the other parent from the child’s life);
- Whether the proposal is practical for the child financially and in terms of their educational and health provision;
- What effect it would have on the Applicant if the application was refused;
- What impact it would have on the Respondent if the application were granted;
- Whether the Respondent’s opposition is motivated by genuine concern for the child or whether there is in fact an ulterior motive.
To succeed with this type of application your plans need to be well thought through. You must consider how your proposed life abroad will work and how a relationship between the child and their other parent will be maintained. People sometimes decide to leave the country and deal with the consequences at a later date, but in our experience this is generally a big and costly mistake to make.
We have experience of all aspects of child related law, including applications for international relocation. If you are looking to take your children out of the UK or prevent them from leaving then you can call our FREE LEGAL HELPLINE on Taunton 01823 354545.