It can be difficult enough for separated parents to navigate the challenges of co-parenting at the best of times; however when one parent makes the decision to relocate overseas with the children it can result in a huge amount of conflict.
Decisions to relocate following separation are becoming increasingly common in our modern society with growing multi-national family units, especially where parents of the child are of different nationalities with familial support systems in different parts of the world.
Regardless of the arguments surrounding the pros and cons of a proposed move, it is indisputable that an international relocation would ordinarily represent a significant change in a child's life. The Court, therefore, takes a thorough approach in considering arguments for and against an external (i.e. overseas) relocation.
1.Seek legal advice
It is imperative that a parent hoping to move abroad with a child on permanent basis seeks legal advice at an early stage. How a parent approaches the idea of a move from the outset can be vital to the prospect of success, whether or not the Court is involved. A detailed and consistent strategy, even if the plans are very much in their preliminary stages, helps with both short-term and long-term relocation planning.
2.What is in the best interests of your child?
If it transpires that a Court application is required (referred to as a "leave to remove" application) then it is important to consider early on what will be taken into account when a Judge ultimately decides if your move abroad with the child can proceed.
As a starting point, the paramount consideration of the Court will be the best interests of the child. In considering what is in their best interests, the Court looks at a checklist of welfare factors as follows:
- The ascertainable wishes and feelings of the child concerned (which is considered in light of the child's age and understanding);
- The child's physical, emotional and educational needs;
- The likely effect on the child of any change in her/his circumstances;
- The child's age, sex, background and any characteristics of his which the court considers relevant;
- any harm which the child has suffered or is at risk of suffering;
- 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; and
- the range of powers available to the court under the relevant legislation
The above will no doubt have already been considered by you in some shape or form in considering whether to move; however it is important to bear in mind that simply because a move abroad may be best for the parent, it does not follow that it is best for the child. Furthermore, the Court has been clear that a parent's motive to move abroad must not be based on bitterness or a desire to punish the other parent.
3.Plan, plan, plan
It is vital to plan ahead, considering every aspect of the child's life overseas. There have been cases where a key factor in the Court refusing a parent permission to relocate has been a result of a lack of a well thought through or viable plan for the future of the child in the new country.
Some key elements to consider are:
- What is your support system like in the new country? For example, does the child have extended family there?
- Does the child speak the same language?
- Where will the child go to school?
- What are the proposals for contact with the parent being left behind (both direct and indirect, e.g. telephone/FaceTime)?
- How will any cultural differences be addressed?
- Do you have a good explanation as to your motivations for the move?
- Are there any immigration considerations that need to be considered?
It is relevant to consider what the current care arrangements are and how often the child is used to seeing both parents. That said, simply being what is considered a traditional "primary" carer will not in any way guarantee a relocation application will succeed; the Court will still consider the impact on the child's relationship with the other parent.
It is therefore important to really visualise what the child's life will look like in the new country and how it will affect his/her emotional and developmental wellbeing, including weighing the gain/loss of ties with certain family members.
Depending on the countries involved, the Court may consider whether it is appropriate to put in place any safeguards in order to alleviate possible risks, such as the risk of a child not being returned for contact with the other parent. It may be relevant to consider the law in the country where the child would move to and how the left-behind parent would be able to enforce an order regarding their contact with the child. It is relatively common to seek evidence from an expert on the local law for the relocation destination.
Moving abroad with a child will not necessarily require involvement of the Court, if the issue can be agreed. The importance of clear and open communication between parents cannot be understated. As with general, day to day arrangements for children, a constructive dialogue can often facilitate or, as a minimum, assist in anticipating the reaction of the other parent and any potential impact on the child.
That said, individual circumstances are unique and tailored to the child in question so it is generally beneficial to seek legal advice from the outset, prior to notifying the other parent of a proposed move to ensure that a suitable plan can be put in place as to the best strategy forward.
As part of your relocation plan, you should consider the immigration rules of your destination jurisdiction; not just for yourself but also in relation to your parental responsibility for your child. For example, if you were to move to the UK with your child (with the other parent remaining in another jurisdiction) you would usually need to prove to the Home Office that you have "sole responsibility" for that child i.e. that you have sole control of their day-to-day welfare and take ownership of decisions in this regard, without any input from the child's other parent. This concept is distinct from the concept of legal custody or access rights. Other jurisdictions apply similar tests. You will need to ensure you have the necessary evidence to show that any such threshold is met, and thus can apply for a visa for you and your child, without the presence of the child's other parent in the country in which you wish to live.
Forward planning is key when considering an international relocation with your child, not least to ensure that you do not inadvertently fall foul of child abduction laws. Legal advice should be sought at the earliest stage to assess the viability and suitability of a move abroad and to identify any helpful steps you might take in anticipation.
Ultimately the key focus of the Court will be to look at what is in the best interests of the child and therefore, regardless of any other factors, it is really important that there has been thorough thought as to how the child's interests are met by the move.
Interested in hearing more? You can sign up to receive content from Boodle Hatfield by using the subscription link here.