International relocation cases: building the strongest case

In today’s global world, families of mixed nationalities are increasingly common.  Following divorce or separation, it is common for the parent who moved to the UK to find themselves without the support of their family and wish to return home.  Alternatively, job or life opportunities may arise internationally which means that a parent may want to relocate with their child. 

Whatever the reason for wanting to relocate, these cases are amongst the most difficult that Family Court Judges are called upon to decide.  If you are considering moving overseas, it is important to obtain permission of all people who hold parental responsibility before removing the child from the country.  If consent is not given, an application can be made to the Family Court for permission to remove the child from the jurisdiction.  

Ultimately, the court’s paramount consideration is what is in the best interests of the child.  If you seek permission to relocate, you will need to satisfy the Judge that your plan to relocate is in your child’s best interests.  Whilst every case is different, here are some top tips on building a strong relocation case.

Don't relocate without permission

Where a child arrangements order is in force, a parent named in the child arrangements order as a person with whom the child shall live can (unless the order says otherwise) take the child out of the UK without permission of any other people with parental responsibility for up to one month. 

If there are no orders, or the intention is to remove the child for a longer period (or permanently) from the UK, the consent of all people holding parental responsibility, or the court, is required. 

Removing a child from the UK without the required consent may result in a criminal offence of child abduction.  Convictions are rare but the UK is a party to a number of international Conventions which, depending on the country, can be relied on by the left behind parent to apply to the court in the country where the child has been taken, for the child to be summarily returned to the UK.

If the child is either returned by a court order following an “abduction”, or the left behind parent is able to prevent the relocation by obtaining court orders in England before it happens, it can be more difficult to then obtain permission of the court. 

It may also be worth seeking the consent of a father who does not have parental responsibility but is involved in the child’s life.  A father in those circumstances could still apply for orders to prevent a removal and for parental responsibility.  This would put you on the back foot when applying to the court for permission to relocate.

Motivations for relocation

The motivations for your proposed relocation are important.  They will be scrutinised by the court and they must be clearly set out.  The court will want to be confident that there is a genuine desire to relocate and a realistic plan.  If the Judge believes that the application is motivated, even in part, by a desire to prevent or limit a relationship between the child and the left behind parent, it is unlikely to succeed.

The child's wishes and feelings

The ascertainable wishes and feelings of the child concerned will be considered in light of their age and understanding.  The views of even an older child may not be determinative, but the older the child, the more important it is that the child is in agreement with the plan to relocate.

Have a well thought out and realistic plan

The court will expect you to have a detailed plan for housing, education, medical care and maintaining the child’s relationships with their left behind parent and extended family. 

A relocation will give rise to a change in circumstances to the child and the court will consider the likely effect of such a change when considering what is in the best interests of the child.  You should be detailed in your plan and highlight the advantages to your child in terms of environment and education.

The court will consider the impact on the child to their relationship with their left behind parent and other extended family members.  Careful consideration should be given to how these relationships can be maintained.  Proposals for international contact must be realistic.  Each case will depend on the facts, but the court will need to understand how the cost of international contact will be met, what the time differences are for any indirect contact through Skype/FaceTime/Zoom/phone and duration and cost of flights.

The impact on the relationship between the child and their left behind parent

In most cases, an international relocation will adversely affect the relationship with the left behind parent and extended family in this country.  Sometimes this can be offset to a degree by having more contact with family members in the new country.  If this is the case, it is a good idea to carefully point out the benefits of relationships in the new country.

Consideration should always be given to how best to maintain or strengthen the relationship through both direct and indirect contact.  If term time contact is not feasible, it may be better for a division of longer school holidays to be weighted in favour of the left behind parent.  Consideration should also be given to contact taking place both in the new country and in England.

Domestic abuse allegations

Allegations or findings of domestic abuse often add another layer of complexity to the case for the following reasons:

  • If the allegations are not proven, or are historic and there has been substantial contact since they occurred, the court may reach the view that you will not support an ongoing relationship between the child and the left behind parent; and
  • Findings of domestic abuse may impact on the extent (if any) of contact between the left behind parent and the child, and how quickly any progression takes place. Contact may be logistically more problematic which could open up any relocation proposal to scrutiny.    

Sometimes it will be necessary to raise allegations of domestic abuse.  The welfare of the child is paramount and sometimes the court must grapple with these issues in order to ensure you and your child’s safety.  Nonetheless advice should be taken as to the nature of the allegations and the impact they would likely have on the outcome of the proceedings.   

If the left behind parent does not have a strong relationship with the child (perhaps because they have only just resumed contact or because they are very young) the court may refuse the application. This means it is not satisfied that the relocation is in the best interests because the relationship is not sufficiently strong to survive the distance.

The impact on the refusal of an application on the parent wishing to relocate

For around 10 years, the leading case in this area was the case of Payne v Payne [2001] EWCA Civ 166.  The Court of Appeal gave guidance as to how these cases should be approached, which included that the effect of a refusal of permission to relocate on the applicant parent is very important.  For many years, this guidance was interpreted as meaning that the “distress” factor carried more weight than anything else.  The Court of Appeal has since clarified that whilst it was one factor to consider, it was no more important than any other factor. 

The court will weigh up all options for the child and in some extreme cases, the court may decide that the best option for the child is to live with the other parent – particularly if they are able to meet the child’s needs and the court takes the view that the parent seeking permission to relocate would not be able to cope. 

Strategic planning

As this blog demonstrates, international relocation applications require careful and strategic planning.  The stakes are high in these cases and it always advisable to seek specialist  advice before any court application is issued. 

Court proceedings can be drawn out and emotionally and financially draining.  Litigation through the courts should always be the last resort and your solicitor should advise you in respect of other more cost effective and faster means of resolving or narrowing down the issues.

 

 

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

Who to contact

Colin
Rogerson

Partner , London

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