If the court has jurisdiction over the child (meaning that the child lives in the country/state where the court has authority), then one parent cannot take the child abroad to live unless they have the agreement of the other parent or a court order.
What if both parents agree?
The parent who wants to move abroad permanently with their child should ask for the written agreement of the other parent and anyone else with parental responsibility for the child. If there is agreement then the parent can move overseas with the child. It is vital though that the agreement is in writing and states that the move overseas is a permanent move and not just for a holiday or an extended stay.
What if they don’t agree?
If one parent wants to move abroad with their child and the other parent objects there are a number of possible things that can happen:
- The parent wishing to move can make an application to the family court for permission to take the child overseas to live; or
- The parent opposing the move can apply to the family court for an order prohibiting the child being taken out of the country (a ‘prohibited steps order’); or
- Both applications can be made simultaneously.
- If agreement of the other parent or a court order is not obtained, then the parent wanting to go abroad can still move, but without the child. Whilst a parent can object to a child moving overseas they cannot stop their ex-partner from leaving the UK without the child;
- If the parent moves abroad with the child without the other parent’s agreement or a court order giving permission, it may amount to the criminal offence of child abduction and potentially could lead to the child being brought back to the UK under the Hague Convention.
How does a court decide?
- The court has firstly to consider two issues:
- Who else has parental responsibility for the child or who, even if they do not have parental responsibility, has a relationship with the child and might object to the move abroad; and
- Does the court have jurisdiction over the child? The family court will have jurisdiction to deal with this even if parents and child are not British citizens, because court jurisdiction is not based on nationality or British citizenship but if the child is habitually resident in the UK.
- Then, if the court has jurisdiction, it decides the issue of whether a child should move abroad to live with one parent, based on what it thinks is in the child’s best interests taking into account the ‘welfare checklist’.
The effect on each parent is the paramount consideration for the court
Usually the child’s best interests are the paramount consideration for the family court but when a judge is asked to decide whether to allow a child to live abroad with one parent, the child’s interests are not paramount. The court now has to consider the effect of granting or refusing the application on each of the parents. It’s important therefore that parents get specialist legal advice before making or opposing a court application to ensure they concentrate on the best points in their case to secure their goal.
Our top tips:
Don’t use the child as a means of trying to secure your aim, whether it is to move abroad, or worse, to get revenge on your ex.
For the parent who is opposed to the move:
Faced with your ex-partner wanting to take your child to live abroad permanently you may feel hurt and angry and it can be tempting to oppose the plan just to be difficult.
For the parent who wants to go:
Conflict will be made worse if the child has already been told of the plans and is eagerly wanting to go in spite of opposition by the other parent. Often a child gets caught up in the excitement of the idea of a move and has not thought through how it will really affect them, for example how they will miss the other parent, any half siblings, grandparents, other relatives, school and friends. Whilst it is tempting for a parent to try to get their way about moving by painting a rosy picture of what life could be like for the child, encouraging the child to go along with the move, be very cautious. You might be seen as trying to influence a child unreasonably or even of being coercive which can backfire on you in court proceedings.
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