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Can My Spouse Take The Children To A New Location Away From Me?

Date: May 18th, 2018 - Written by: Brookman Solicitors

 

We understand the fear and panic you may feel if your spouse threatens to move away with your children. You do have legal options available to you so it is always useful to seek legal advice at an early stage.

At Brookman in London we deal with this issue regularly. Usually in one of the following scenarios:

  • when a parent wants to take children abroad on holiday
  • when a permanent move to another part of the UK is suggested
  • when one parent decides to permanently relocate abroad with the children.

 

Holidays Abroad

Generally there should be no issue about one parent taking children on holiday in the UK. But the situation is different if one parent wants to take the children abroad on holiday. If both parents have parental responsibility and there is no child arrangements order in place then the parent who wishes to take the children abroad must first get the consent of the other parent.

If there is a child arrangements order dealing with residence in force then the parent with the benefit of the order may take the children abroad without permission. But only for up to a month.

Occasionally one parent may believe that a foreign holiday is being used as a pretext for permanently removing a child from England and Wales. If you believe there is a possibility of abduction before travel it is essential to take legal advice as quickly as possible. There are legal mechanisms in place to prevent a child being taken out of the country (prohibited steps orders). But enforcement of such orders becomes more difficult if the child is already abroad. Particularly if he or she is in a country outside the European Union.

 

Moving Children To Another Part Of The UK

Moving children to another part of the country is known as ‘internal relocation’. In principle one parent does not have to seek the consent of the other to do so. But it is possible for a parent who objects to the relocation to apply for an order (a prohibited steps order) to prevent the move. There is a lot of case law in this area. In some cases in the past it appeared the courts were more flexible when it came to permitting a move inside the UK compared to a move abroad. However more recently there has been an acknowledgment that internal relocation can have as much impact on children and a non-resident parent as a move abroad. At the end of the day any order will be decided in the interests of the child’s welfare. So the wishes of the parent will only be considered insofar as they might impact on the child.

 

Moving Children Abroad

Marriages between people from different countries are not unusual. When relationships like these break down the issue of which country a child should live in becomes very real. It can cause great uncertainty and anxiety. Similarly relocation abroad for work and other reasons is increasingly common. As a result we see an increasing number of clients affected by the issue of what is known as ‘external relocation’.

A parent who wishes to remove a child permanently from the jurisdiction of the courts of England and Wales must either obtain the consent of the other parent and anyone else with parental responsibility or obtain a court order (known as a specific issue order).

In deciding this type of case the welfare of the child is again decisive. But there is a presumption that ongoing regular contact with both parents improves welfare. The Children’s Act provides a checklist of factors to be considered by the court in deciding if a move is in the interests of the child. These include:

  • the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
  • his physical, emotional and educational needs
  • the likely effect on him of any change in his circumstances
  • his age, sex, background and any characteristics of his which the court considers relevant
  • any harm which he has suffered or is at risk of suffering
  • how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

It will be up to the parent who objects to the move to show how it might negatively impact the child. For example, through loss of regular contact. Or practical difficulties in relation to education, language barriers or healthcare that you think the child might experience as a result of the relocation.

Often the best way to approach a case of relocation is to try to reach agreement with your spouse about future contact. That way the courts do not become involved. As we have seen, while the courts will consider the impact any removal may have on you, the welfare of the children is always paramount. And as a result the outcome of these cases is particularly difficult to predict. As a High Court judge remarked in a 2016 case on international relocation, when deciding where a child should live, the child is ‘at the centre of the exercise’.

 

For more information, listen to the BBC interview with Henry Brookman regarding an international abduction case:

 

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