Can I move abroad with my child after separation? International child relocation explained

Two of the most common questions asked of family practitioners are whether a parent can move abroad with their child after separation, and what happens if a child is taken overseas without consent.

International relocation can be one of the most difficult issues separated parents face. A parent may have entirely legitimate reasons for wanting to move abroad, whether to return to their home country, pursue an employment opportunity, or be closer to family support.  Equally, the parent remaining in England and Wales may be understandably concerned about the effect of the move on their relationship with their child. Obtaining advice at an early stage can prevent costly mistakes and helps parents understand their options.

Whichever position a parent is in, obtaining advice at an early stage is important. Decisions made before agreement has been reached or permission obtained can have significant consequences later.

Do I need permission to move abroad with my child?

In England and Wales, a parent cannot usually remove a child from the jurisdiction permanently without either:

• the consent of everyone who has parental responsibility for the child; or
• permission from the court.

Parental responsibility refers to the legal rights, duties, powers, responsibilities, and authority a person has in relation to a child. Where more than one person has parental responsibility, major decisions affecting the child, including a permanent move abroad, generally require agreement.

Disagreements about international relocation are common following separation. Where one parent wishes to move abroad and the other opposes the move, the issue may need to be decided by the family court. An application for permission to relocate internationally is also sometimes referred to as an application for leave to remove. Until an agreement is reached or the court grants permission, the child should not be permanently relocated overseas.

The court’s paramount consideration will be the child’s welfare. Decisions are made on a case-by-case basis, taking into account the individual circumstances of the child and family.

The process for making a relocation application, and the factors the court considers when deciding such applications, are explored in more detail in our Keynote on preparing a relocation application.

Is a holiday abroad treated differently?

Yes. A temporary holiday abroad is different from permanently relocating a child to another country.

Where a Child Arrangements Order provides that a child is to live with a parent, that parent can usually take the child abroad for up to one month without obtaining the consent of everyone with parental responsibility, unless the order says otherwise. Outside that situation, consent may still be required.

Importantly, permission for a holiday should not be confused with permission to relocate permanently. A history of agreed foreign holidays does not give either parent the right to move abroad with the child.

What happens if a child is taken abroad without consent?

This is an area where parents need to be particularly careful. A parent should not assume that because a child lives primarily with them, or because they have previously been permitted to travel abroad with the child, they are entitled to relocate without agreement.

Taking a child abroad without the necessary consent or court permission may amount to international parental child abduction. Under the Child Abduction Act 1984, it is a criminal offence for a parent or certain connected persons to take a child under the age of 16 out of the United Kingdom without the appropriate consent. Appropriate consent will usually mean the consent of everyone who has parental responsibility for the child, unless the court has authorised the child’s removal.

International parental child abduction commonly arises in two situations:

• a child is taken abroad without the necessary consent or court permission.
• a child is not returned following an agreed overseas trip.

Both situations can give rise to urgent legal proceedings.

Can a child be returned if they have been taken abroad?

In many cases, there may be legal mechanisms available to seek the return of a child who has been wrongfully removed from, or retained outside, their country of habitual residence.

The Hague Convention on the Civil Aspects of International Child Abduction 1980 is an international agreement designed to address international parental child abduction. Its purpose is to facilitate the prompt return of children who have been wrongfully removed to, or retained in, another participating country.

The available remedies will depend on a range of factors, including the country involved and the specific circumstances of the case.

What should I do if I am concerned my child may be taken abroad?

If you are worried that your child may be taken overseas without your consent, it is important to seek specialist legal advice as soon as possible.

Protective measures may be available where there is a genuine concern that a child could be taken abroad without permission. These can include court applications and, in urgent situations, requests for a port alert through the police.

Early advice can often help parents understand their options and take appropriate steps to protect their position.

Depending on the circumstances, urgent applications can be made to prevent a child’s removal, and steps may also be available in relation to passports. Where there is an immediate risk of removal, advice should be sought urgently rather than waiting to see whether the other parent acts on the threat.

What should I do if my child has already been taken abroad?

International parental child abduction cases are often highly complex and emotionally distressing. If a child has already been removed from the UK without consent, urgent legal advice should be sought.

Specialist family lawyers can advise on the options available, including any court applications, international procedures, and sources of support that may be relevant to the case.

Time can be critical in international child abduction cases. If a child has already been removed or retained abroad, specialist advice should be obtained immediately so that the appropriate return procedure can be identified and, where necessary, urgent proceedings commenced.

If you are considering relocating abroad with your child, seeking to oppose a proposed relocation, or are concerned that your child may be taken overseas without your consent, early legal advice can be invaluable.

Family partner Harriet Donovan advises parents on both sides of international relocation cases, including those seeking permission to relocate and those opposing a proposed move. To discuss, please contact her.

In our next Keynote, we examine how to prepare a relocation application and what the court considers when deciding whether a child should be allowed to move abroad.