Moving or travelling abroad with a child after divorce or separation, whether temporarily or permanently, can be controversial. It’s vital to consult an international family lawyer with substantial experience in this complex area. This applies whether you’re the parent who wishes to remove the children or the parent who objects to their removal.
International families are on the move
Many expats are seeking permission to remove their children overseas. Why? Covid travel restrictions and lockdowns have lifted, and families and loved ones have spent too long apart.
And expats who live abroad are having second thoughts. They’ve been unable to return home to the UK for long periods. They ask us whether or not they may remove their children and return to the UK. Or would this be considered child abduction?
Parental consent, or Court order?
If you want to take the children abroad, even for a holiday, this must either be with consent of all those with parental responsibility, or permission of the Court. Otherwise it will be a case of child abduction, an imprisonable offence. These rules also apply if:
- there’s a child arrangement order and
- you take the children abroad without consent for more than twenty eight days
What are the options when parents cannot agree? You could consider an alternative approach to settling the dispute:
But if one parent doesn’t trust the other and there are fears of child abduction, an application to the Court might be the right course.
The Court’s top consideration will be the welfare of the children. Parliament has set out a Welfare Checklist under the Children Act:
- the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
- their physical, emotional and educational needs
- likely effect on them of any change in their circumstances
- their age, sex, background and any characteristics which the court considers relevant
- any harm which they have suffered or are at risk of suffering
- how capable each parent is of meeting their needs
An example …
In 2018 the Court heard a case where the mother was Ukrainian, and the father Russian (S v V (Children – Leave to Remove)  EWHC 26).
The couple married in Ukraine in 2012 and lived in Hampstead, London. When the marriage ended in 2015 they agreed the children, “S” aged 5, and “V” aged 2, would live with their mother. She lived in Hampstead in a £9m property close to the former family home (where the father remained).
But the mother changed her mind, saying she wanted to move Kiev with her new partner. She applied to the Court for leave to remove the children to Kiev. But in the meantime she relocated them to Ukraine without the father’s consent or the Court’s permission.
Mr Justice Mostyn emphasised that the children’s welfare should be the Court’s paramount consideration. He provided helpful insight into how you can satisfy the Court:
- Is your case
- well thought out
- supported by evidence
- advanced in good faith rather than driven by an unworthy ulterior motive
- What is the impact
- on the mother if the application is refused
- on the father if it is granted?
The Court will of course undertake a “global” or “holistic” or “360 degree” exercise, evaluate the evidence and resolve disputed facts.
Did the children move to Ukraine?
Mr Justice Mostyn refused permission to the mother to take the children to Ukraine. Why?
- Mother’s partner had refused to give evidence. Did he have something to hide?
- Mother’s case was 90% about her partner rather than returning to Kiev
- The Court accepted an independent social worker’s evidence:
- Mother had fallen out with the grandmother who lived in Kiev and was close to the children
- Mother’s partner’s behaviour was controlling
- Children would find travelling to and from London tiring
- Children’s contact with father in Kiev would not be of the same quality as in London where they had extended paternal family
- Children’s infrequent and lengthy visits in London would not foster the same relationship
- Mother had dismissed the children’s nanny
The Court also expressed concern about the mother’s willingness to comply with orders.
You fear the other parent will abduct your children. Your first question is whether the country involved is signed up to the Hague Convention on the Civil Aspects of International Child Abduction. If yes, you will be able to make an application to the Court in the country in which the children usually reside for them to be returned.
But is the parent proposing a holiday or a move to a non-Hague Convention country?
In R (A Child)  EWCA Civ 1115, concerning the removal of a child to Kenya (not a signatory to the Hague Convention on Child Abduction) the Court of Appeal provided guidance:
- Would this be in the best interests of the child
- Do the advantages to the child of her visiting the country outweigh the risks to her welfare which the visit will entail
- What safeguards can be put in place to minimise the risk of retention and to secure the child’s return
- Expert evidence might be helpful
Did you remove the children?
If the country is a Hague signatory, do you have a defence to a claim under the Hague Convention for the return of the child? Our next blog will cover this question.
Moving or travelling abroad with a child
Contact International Family Lawyer Joanne Houston on 01962 217640 for an initial consultation on Moving or travelling abroad with a child. In this 20 minute session she will review your situation and how you can achieve your objectives.
JUST FAMILY LAW are specialist divorce and family lawyers. We offer Collaborative law solutions tailored to your family’s needs.
The topics covered in this blog post Moving or travelling abroad with a child are complex. They are provided for general guidance only. If any of the circumstances mentioned in this blog apply to you, seek expert legal advice. This is an evolving area of the law and is current at the date of publication.
Image for Moving or travelling abroad with a child Four children walking together, August 2018 by Tom Axford 1 on Wikimedia Commons