How to relocate abroad with children

Relocation of a child to another country requires the agreement of both parents or permission of the court. If you do not have either, you could be guilty of child abduction which is a criminal offence.

If an application to court needs to be made, the matter will not be dealt with quickly and it will be costly and stressful with no guarantees that permission will be granted even if arbitration is used to obtain a speedier outcome.

Applications to relocate abroad with a child are not straightforward. They are highly emotional as one parent fears seeing very little of their child and the other parent is anxious about being prevented from moving to a country with which they often have a very close connection.

The welfare of the child is always the paramount consideration of the court and parents seeking to relocate face significant challenges now owing to an increase in shared parenting in recent years.

The case law

Payne v Payne [2001] was the leading case on this issue. The test coming out of that case was:

1. Is the application genuine, i.e. not motivated by some desire to exclude, perhaps, the father from the child’s life?
2. Is the application realistic, i.e. is it founded on practical proposals which are well researched and well investigated?

If the application is genuine and realistic, the court will consider:

• Is the opposition motivated by genuine concern for future of the child’s welfare or is it driven by some ulterior motive?
• What would be the extent of the detriment to the so-called left-behind parent and their future relationship with the child were the application to be allowed?
• To what extent might that be offset by, for instance, extension of the child’s relationship with the maternal family and homeland, where applicable?
• What would be the impact on the applicant either as a single parent or as a new wife/husband of a refusal of the application to relocate?
• The outcome of these questions must then be brought into an overriding view of the child’s welfare as paramount consideration, directed by the statutory welfare checklist insofar as appropriate.

However, following the Court of Appeal’s decision in MK v CK [2012] (known as “Re K”) which is the most important relocation case since Payne, the thinking has shifted back to the welfare principle. Although the case of Payne reported that the welfare of the child is paramount, it was interpreted in a way which brought doubt on this. Significant emphasis was placed on the effect of a refusal on the applicant parent.

The case of Re K, however, clarifies the weight to be given to the Payne guidelines which had been taken to be “principles” of law by judges and consequently many lawyers. The overriding principle is the question as to what is in the child’s best interests. Also, the weight attached to the impact of the refusal on the applicant parent will not be so great and will not be given precedence over the loss of the parental relationship to the child.

Applications to relocate should therefore be made with Re K in mind but also Payne because as long as the welfare principle remains the paramount consideration, the guidance provided in Payne is still relevant. However, every relocation case is completely different and will turn on its own facts.

The welfare checklist

The welfare checklist is set out in Section 1(3) of the Children Act 1989 and provides that the court must have particular regard to:

1. The ascertainable wishes and feelings of the child (considered in light of age and understanding).
2. The physical, emotional and educational needs of the child.
3. The likely effect of any change in the child’s circumstances.
4. The age, sex, background and any characteristics of the child which the court considers relevant.
5. Any harm which the child has suffered or is at risk of suffering.
6. How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
7. The range of powers available to the court under the Children Act 1989.

Requirements for a successful application

Any application requires meticulous and careful planning, ensuring that the evidence covers all factors including:

• Reasons for wanting to relocate.
• Where the applicant proposes to live, providing full details of maps of the area and schools and amenities nearby.
• How the move is to be funded.
• Information about what the area has to offer including hospitals, other medical treatment facilities, general practitioners etc. as well as sports and other facilities.
• How close the applicant will be to their support network of friends/family members.
• Full details of the applicant’s proposed employment and childcare etc.
• The consequence of changes in any language and culture on the child.
• Full details regarding schools including whether a place will be available and what fees are likely to be payable and how that will fit with the child’s education to date.
• Importantly, proposals for the child to spend time with the other parent who is left behind and the detail in practical terms and as to how that will be afforded financially.
• The effect on the applicant of a refusal to relocate including emotional and financial consequences.

Relocation within the UK

It is a matter of good and fully responsible parenting to notify the other parent and all those with parental responsibility of any proposed moved to another part of England and Wales and to provide full details of the proposed move.

Again, the welfare of the child is always the court’s paramount consideration and if a parent proposes to move with the child from England and Wales to another part of the United Kingdom and does not have the consent of everyone with parental responsibility, a Specific Issue Order under Section 8 of the Children Act 1989 should be obtained in good time before the proposed move.

If the other parent does not agree to the child moving within the UK, he or she should apply to the court for a Prohibited Steps Order to ask that the court prevents the other parent from moving with the child. Essentially, the court must look at all the circumstances of the case in order to decide whether a relocation is in the child’s best interests.

Opposing a relocation application

Although many relocation applications are successful, it is possible to oppose them. Opposing a well-prepared relocation is highly possible with considered presentation of the adverse impact on the child to include loss of wider family, friendships and culture, and roots generally. It needs to be shown that it is in the child’s best interests to remain in this country and consideration of the welfare checklist is required along with education, relationships with the parent left behind and other family members, health, sport and other activities.

In some cases, it may be best to consider putting safeguards in place to ensure extremely good future contact with the child before any relocation goes ahead instead of opposing the application.

Alternatives to court

It is possible to agree a move/relocation through mediation where a number of concerns and anxieties can be discussed and potentially alleviated.

If two jurisdictions are involved, a “mirror order” can be obtained in the other country as well as obtaining a consent order in the resident country, so as to provide reassurance to both parents that the agreement will be upheld both here and in the receiving country.

If you have questions or concerns about the relocation of children or any other family query, please contact Emma Harte.