By Susan Alexander, Consultant Solicitor, Family and Mediation
These days more and more people are spending time abroad, whether they’re overseas on business, trying to build a new life in a different country, or just taking a long trip.
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's 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’s done amicably, and good arrangements are put in place to ensure the children spend a reasonable amount of time with each parent, then there shouldn’t be a problem – regardless of whether one party moves to an EU or non-EU country. However, if the process is rushed, isn’t given enough thought, or is done in haste to deliberately exclude the other parent, there could be serious consequences further down the line, especially for the children.
Living arrangements settled outside court require a lot of co-operation between the parents. So, generally, ex-partners tend to live relatively close to one another to ensure the child has adequate contact with each parent. Naturally, this is tough to achieve if one parent wants to move abroad with the child. Currently, there are no major barriers on movement between the UK and the EU, so it should be easy for contact to be maintained if the move is within the EU. However, bear in mind that in a few months’ time we’re exiting the EU, and restrictions on both residency and free movement between the UK and the EU may change dramatically. It’s 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’re moving abroad and want to take the children with you, or if you’re 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.
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, or stays in the UK with you.
Presently, by default, mothers have parental responsibility. Fathers only automatically gain these rights if they’re married to the mother. Unmarried fathers can also acquire these rights if their child was born after 1st December 2003, as long as the father is named on the birth certificate.
If your child was born before 1st December 2003, and you are not married to the mother, you don’t automatically have parental responsibility unless:
1. The court grants you parental responsibility
2. You’ve 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 can’t take your children out of the country to live abroad legally unless you give your permission.
If you’re happy with their new living arrangement, it’s wise to get a UK court order highlighting the terms of the agreement. This should include the amount of contact you'll have when the child moves abroad. Once completed, get a "mirror" order from the country the child is moving to. This is essential, as all issues of custody 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 don’t want your child to move abroad, your ex-partner needs to apply to the court for an order to agree to their case. 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. Some countries outside the EU are parties to the Hague Convention which also makes it easier to ensure safe return. However, if the move is to a non EU country which is not a party to the Hague Convention, there could be significant difficulties and you should seek legal advice.
If you're 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 faster you file your application, the sooner your child will be returned. Then, once the child is back in the UK, the court needs to decide whether it’s appropriate for your ex to move abroad with your children on a more permanent basis.
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’s no guarantee that it’ll 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.
For more information about our Family Law services, please contact a member of the Family Law team on 01244 356 789 or email email@example.com
Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.