PMC Family Law solicitors are regularly instructed on cases where one parent/guardian seeks to remove their child from the jurisdiction of England and Wales and relocate to another country. A common example is following the breakdown in a relationship when one parent wishes to return to their native country or relocation due to work taking their child or children with them.
A parent may not relocate with a child to another country without the consent of all those who hold parental responsibility for the child, it is always advisable to obtain this in writing.
In accordance with section 13 of the Children Act 1989, if a Child Arrangements Order is in force directing that the child lives with one parent, then the parent with whom the child does not live is not allowed to remove the child from the jurisdiction of England and Wales without the written consent of all those with parental responsibility or permission from the court.
If the court order directs that the child lives with you and you wish to take the child out of the jurisdiction for less than one month, you do not require written consent or leave from the Court.
The Court may at the time of making the Child Arrangements Order specifically direct that either parent can take the child abroad on holiday so as to try and avoid any potential issues arising in the future. This will of course be completely dependent upon the facts of each individual case.
Permission is also required from the Court if the child is a ward of the court in accordance with practice direction 12 of Family Procedure Rules.
If a child is taken abroad without the appropriate permissions, this may be considered to be child abduction and is a criminal offence. Steps may be taken within the Country your ex-partner has moved to ensure the child is returned to the jurisdiction of England and Wales.
When an application is made to the Court, the welfare of the child is paramount. The Court therefore looks at the welfare checklist which includes the following:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- their physical, emotional and educational needs;
- the likely effect on them of any change in their circumstances;
- their age, sex, background and any characteristics of theirs which the court considers relevant;
- any harm which they have suffered or are at risk of suffering;
- how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;
- the range of powers available to the court under this Act in the proceedings in question.
In addition to the above factors the Court will also take into consideration the following factors:
- the proposals of the parents/Guardian including the practicalities of the relocation. This should include plans in respect of the child’s education, accommodation, child care, employment, financial resources and immigration procedures etc.;
- Has adequate contact been arranged with the other parent;
- What affect a refusal to relocate can have on the Applicant and subsequently the child;
- Is the motivation for the move genuine and not an attempt to bring contact with the other parent to an end;
- What contact the non-resident parent and wider family is having with the child and what affect the denial of contact with them will have on the child.
In some cases, the Court may deem it appropriate to request that Children and Family Court Advisory and Support Services (CAFCASS) become involved. This will enable the child to discuss their wishes and feeling with the Cafcass Officer rather than attending Court. The Cafcass Officer will speak to the child and all parties in the case to determine their respective positions before making any recommendations to the Court which will focus on the welfare of the child.
If you believe your ex-partner is planning to relocate to another country with your child without permission, you can apply to the Court for a Prohibited Steps Order. If this is granted, they will be prevented from removing the child until further order of the Court.
If the matter becomes extremely urgent, a Port Alert Order can be put in place at ports and airports which will alert officials should your ex-partner attempt to leave the Country.
Once an application is before the Court, it is likely to take 6 to 12 months to be resolved depending on the facts of each individual case.
We understand at PMC Family Law that this can be an extremely emotional time whereby you may feel hindered by your ex-partner from moving on with your life or stuck in a position where you ex-partner will do anything to prevent you from having contact with your child. Our expert team of family solicitors headed by Pauline McNamara have expertise in this complex area and are able to provide you with calm and effective advice throughout the process.
If you wish to arrange your free consultation contact us today on 0151 375 9968 or email .