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25/09/2018

What happens when a parent wants to move away and take the children with them?

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 child 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 party 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 good 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 malice, there could be serious consequences further down the line, especially for the children.


Living Arrangements

When parents separate, sorting out living arrangements require a lot of cooperation between the parents. It is often challenging enough to ensure the child has adequate contact with each parent when ex-partners live relatively close to one another to. Such arrangements are even more difficult to achieve if one parent wants to move abroad with the child.

 

On a legal basis, currently, there are no major barriers on movement between the UK and countries part of the EU, so it should be easier for contact to be maintained. However, bear in mind that in a few months’ time we are exiting the EU, and restrictions on both residency and free movement between the UK 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 the UK, you need to know your rights – not just for yourself, but for the sake of your children too.


Parental Responsibility

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 child moves abroad with your ex partner, or stays in the UK with you.

Presently, by default, mothers have parental responsibility. Fathers only have parental responsibility if they are married to the mother. Unmarried fathers can also acquire parental responsibility if their child was born after 1st December 2003, as long as the father is named on the child’s 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-partner cannot take your children out of the country to live abroad legally unless you give your permission, or the court makes an order giving permission.

If you are happy with their new living arrangement, it is wise to get a UK court order highlighting the terms of the agreement. This should include the amount of contact 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 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 giving them permission to relocate. If they decide to press the issue, always get professional 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 the UK and the other EU countries that make it easier to ensure the safe return of your child to the UK if they have been taken without consent.

If you are a parent handling a child abduction case, make sure you:

•       Hire a solicitor who specialises in this field

•       Make an application to the court as quickly as you can.


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 the child is at risk.

If your ex-partner is planning to take your children abroad, speak to a family law specialist as soon as you can.