When relationships end, families often experience problems adjusting, and one of the most difficult issues that can arise happens when one parent wants to relocate or move abroad with their children, and the other parent does not want this to happen. This article explains the law in this area and looks at what you can do to prevent your ex moving abroad with the children.
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Law on taking children to live abroad
The law surrounding taking children to live overseas is complex. Essentially, if the court has jurisdiction over the child, then one parent cannot simply take the child abroad to live unless they have agreement to the move from the other party with parental responsibility or a court order saying they can do so.
If one parent wishes to relocate abroad with their children and the other parent objects, there are several potential outcomes:
- The parent who wishes to move overseas could ask for the other parent to provide their written consent, and that of any others who have parental responsibility for the child. If an agreement is reached, the parent can move abroad with the child. It is essential the agreement is in writing and states that the move is permanent and not simply for a holiday or an extended stay.
- If there is an objection to taking the child abroad, an application can be made to the family court for permission. Conversely, the objecting parent could apply to the family court for a prohibited steps order preventing the child being taken out of the UK, or for a specific issue order determining how a dispute over a child’s wellbeing or upbringing should be resolved.
- If an agreement cannot be reached or a court order is not forthcoming, then the parent with care can still move abroad, but must not take the child with them. Although the other party can object to their child moving abroad, they cannot stop their ex from leaving the country without their child.
- The parent moves abroad without an agreement or court order and takes the child with them. This may amount to the criminal offence of child abduction and might lead to the child being brought back to the UK under the Hague Convention.
Types of order available
The following applications can be made asking the court to resolve a dispute about moving abroad with a child:
Specific issue order
This is an order that decides a specific question that arises, or which might arise, in connection with any aspect of parental responsibility.
Prohibited Steps Order (PSO)
This is an order by the court to stop one parent from exercising their parental responsibility in a way that is not believed to be in the child’s best interests.
Prohibited Steps Order
It is extremely common for parents to disagree about where the child lives or which school they will attend. But if one parent has concerns that the other wishes to relocate overseas and take their child with them without otherwise obtaining permission, the parent can apply to the family court for an order called a prohibited steps order to stop the child being removed from the UK.
When deciding whether to make a prohibited steps order, the child’s welfare is the court’s paramount consideration.
Before applying for a prohibited steps order, the applicant must attend a mediation or MIAM meeting to discuss alternative ways that could help the parents resolve matters without going to court.
If the prohibited steps order is urgent, the court rules allow the applicant to bypass the MIAM requirement and make a PSO without informing the other party. The court will only do this if it is necessary to protect the best interests of the child.
The duration of a prohibited steps order varies between cases. Normally, courts impose a duration they feel serves the best interests of the child, which can range from several months to many years.
Specific Issue Order
Anyone with parental responsibility can make an application for a specific issue order. For those who don’t hold parental responsibility, they may still be able to apply if they obtain the court’s permission to do so.
Where parents cannot make a decision together about an issue relating to a child’s wellbeing or upbringing, the court will consider what is in the child’s best interests and set out their ruling in a specific issue order.
As with a PSO, prior to applying for a specific issue order, the applicant must first attend a MIAM to try to resolve the issue without going to court. The rules around having to attend a MIAM are waived if the application is urgent.
A specific issue order automatically ends when the child reaches 16 years of age unless there are exceptional circumstances.
Is the move in the child’s best interests?
As with any case involving children, their welfare will be the court’s paramount consideration. The court must also be satisfied that making a specific issue order is better for the child than not making any order at all. The court is likely to direct a CAFCASS officer to prepare a report to give a balanced view of the issues and put forward any potential solutions or recommendations. This provides the court with independent intelligence regarding the welfare of the child.
What is the court process?
When a court decides whether a child should move abroad, it must consider what it believes is in the child’s best interests taking into account factors referred to in the “welfare checklist”. This includes things such as the wishes and feelings of the child, the likely effect on them of any changes in circumstances, how capable each parent is of meeting his needs, amongst a raft of other vital considerations.
It cannot be overstated; when a court makes a decision about a child’s welfare, the child’s best interests are the court’s paramount consideration. When deciding whether to make an order for a child to live overseas, it is a fine balancing process as the child’s interests are not paramount, because the court must decide the effect of refusing or granting the application on both parents.
If you are a parent thinking about moving abroad with a child, or a parent facing a relocation application, the best approach is to get specialist legal advice at the earliest opportunity.
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.
