After you have separated or divorced then you may be considering relocating out of England or Wales – perhaps to move back to your home country. But, can you take your child out of the UK without the other parent’s permission? Do you have to go to court to move abroad with your child? And if your ex and child are planning to move overseas, can you stop them? Keep reading for answers to these questions and more.
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Can I take my child out of the UK without the other parent’s permission?
If you take a child under 16 out of the UK without the permission of the court, or all the people with parental responsibility, you are effectively committing child abduction.
Child abduction may be a criminal offence under UK law, and so taking your child overseas without the agreement of the other parent is a serious matter.
Mothers have parental responsibility, as do married/divorced fathers. Since December 2003 in England, fathers whose name is on the birth certificate also have parental responsibility, and therefore have a say in where their child should live.
Remember that a mother can take a child abroad without the father’s permission if the father does not have parental responsibility.
In addition, you can take your child abroad without permission from the other parental responsibility holder if you have a Child Arrangements Order for a child to live with you, as long as you’re not abroad for more than 28 days. Any trip abroad must also ensure that any contact arrangements stipulated in such an order are adhered to.
Can my ex take my child on holiday abroad?
If both you and the other parent have parental responsibility, and there are no Child Arrangement Orders in place, then neither of you can take the child on holiday outside the UK without the written consent of the other parent (or the other party with parental responsibility if that person is not also the parent).
If you don’t obtain consent, you will have to apply to the court for permission to leave the UK.
If you are the mother and the father does not have parental responsibility (and there are no Child Arrangement Orders in place), you strictly do not need permission to take your child abroad.
However, gaining agreement from the other parent in all cases can help you to avoid problems with contact, court applications, or accusations of child abduction.
Remember that taking a child overseas without consent could be considered ‘child abduction’, which may have criminal and civil consequences. It is a serious matter and there can be penalties, even if you’re only planning to go on holiday.
Can I stop my ex relocating abroad with my child?
If you have parental responsibility for your child then yes, you can refuse to give your consent for the other parent to relocate overseas with your child.
If you refuse to give your consent, then an application will have to be made to the courts for permission. You may need to obtain an order which prevents your child being removed from the UK, and you will have to explain to the court why you believe the relocation is not in the best interests of your child (see the section below).
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Do I have to go to court if I want to move abroad with my child?
No. If you can obtain consent from the other parent to move overseas then it can be a straightforward process for you to relocate.
If the two of you can’t agree then you can try collaborative approaches such as family mediation to talk through the issues. You can talk through your relocation plans and your reasons for wishing to move overseas, and the other parent can express their concerns.
Mediation allows you to explore all the issues and you may be able to come to an agreement that suits all parties. For example, you may agree to delay relocation until your children are older. Or, you may be able to agree contact arrangements that ensure your child is getting adequate quality time with the non-resident parent.
If you absolutely can’t agree after other approaches have failed, then you will have to go to court if you are adamant you wish to move abroad.
What factors will the court take into account before granting ‘leave to remove’?
If you want to relocate abroad with your child and the other parent does not agree, the court will have to give you consent to move. This is called ‘leave to remove’.
When deciding whether to grant leave to remove, the court will take several factors into account. These include:
- Whether the plans are well-researched. You will have to show that you have researched where you will live, how you will generate an income, and where your child will go to school.
- If the application is genuine. You must show that there is a genuine reason for moving abroad, not simply to make it difficult for your child to see their other parent.
- How contact will continue with the other parent. Are there plans to ensure that the non-resident parent will continue to have meaningful contact with your child?
- The wants and needs of the child. Factors such as their age, background and their own wishes will be taken into account.
- How capable each parent is in meeting your child’s needs.
- The effect on the parent who wishes to relocate if the application for leave to remove is refused.
The primary concern for the court is always the welfare of your child.
Does it matter what country my ex and child are moving to?
There are many reasons you may wish to relocate abroad with your child. Perhaps you’re a foreign national and you wish to return to your home country where you have a support network of family? Maybe you have been offered a job overseas? Or, you may have met a new partner and wish to relocate with them.
Whatever the reasons, you need the consent of anyone with parental responsibility before you move. If you can’t obtain this, then you’ll need the court’s permission.
It doesn’t matter which country your ex and child are moving to. However, their destination will have an effect if you need to try and have your child returned in the future (see the section below).
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If ‘leave to remove’ is refused, can my ex apply again at a later date?
Yes. Generally speaking, there is nothing to stop your ex making a further application for leave to remove in the future.
Previous court judgements may be considered when bringing a new application, but the fact that a previous application was refused will not necessarily prevent a further application from succeeding.
What practical steps can I take if I think my ex is going to take my child abroad?
If you are concerned that your child is set to be taken overseas without your consent, you can consider:
- Obtaining your child’s passport.
- Speaking to the police and making a detailed statement.
- Applying to the court for a Prohibited Steps Order to prevent the child being taken out of the UK. Any breach of such an order would have consequences for the parent who removes the child.
- Contacting HM Passport Office and ask them to surrender or not grant a passport to the child. They may want to see a court order but can surrender a passport if you’re an unmarried mother wishing to object.
If my child has been taken abroad without my permission, how can I get them back?
If your child has been taken overseas, then your options will depend on which country your child has been taken to.
Firstly, you should check whether your child is in either a Brussels IIa or a Hague Convention country. These conventions are agreements between nations which are designed to ensure that children are returned to the country where they usually live as quickly as possible. They also ensure that the arrangements for children under the law of one country are effectively respected in other countries.
If your child is in a Hague or Brussels IIa Convention country, you can make an application for their return to the central authority in England and Wales: the International Child Abduction and Contact Unit (ICACU).
You should make this application immediately. If you wait until after 12 months have elapsed, it is likely to be more difficult for the child to be returned as they may be settled in their new environment.
This application will be heard by the court in the country where your child is. Ordinarily, orders will be made by the courts in the other country to ensure the swift location and security of your child.
Note that courts in Convention countries will only deal with wrongful removal or retention. If the court finds the child has been removed wrongfully then it will generally order the return of the child. These courts will not make a decision on where they believe the child should live.
If your child is in a country that is not part of one of these international conventions, then it may be more difficult to secure their return. You may have to start court proceedings in the country where your child has been abducted to or come to an agreement with the other parent.
In this instance it can be beneficial to speak to the Foreign and Commonwealth Office for advice. The Child Abduction Unit can provide practical help when dealing with authorities in non-Convention countries.
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The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
