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The following scenario is common in family law: You and your ex-partner both live in England, each spending time with your two children. You wish to move away from England to another country, taking the children with you. Your ex disagrees, wanting to remain in England with the children.

There is no middle ground in this dispute. One of you will be deeply disappointed by the outcome. It is impossible for you both to be happy. Whatever is decided will have profound implications for both of you and for the children. For these reasons, disputes about the international relocation of children are some of the most fraught and difficult in family law.

In this article we set out some points to consider if you are thinking about an international relocation with your children.

Legal restrictions on relocation

First, be aware of the legal restrictions on your planned relocation. If the other parent (or anyone with parental responsibility for your child) does not agree to the relocation, then by going ahead with the move you are very likely to be committing the criminal offence of child abduction.

You must therefore consult with a solicitor at a very early stage of planning for your relocation to ensure that you do not fall foul of the law.

Applying for permission to relocate

Even if the other parent objects, you will be able to relocate with your child if you first obtain the permission of the court. To do this, you will need to make an application for permission under the Children Act 1989.

In considering your application, the court will consider the welfare of your child above all other considerations. If the court decides that it is in the best interests of your child for the relocation to go ahead, then you will be given permission. If the court decides that it is in the best interests of your child to remain where they are, permission will be refused.

When making your application you must therefore think very carefully about the best interests of your child. Is the plan to relocate in their best interests, and if so, how will you demonstrate this to the court?

Think about your reasons for wanting to move

The court will want to know why you wish to relocate. In some cases people wish to return to the country of their birth. You may have close family connections to the country. Your child may have been born there. You may both speak the language of that country. You may own property there. It may be that you have only lived away from your home country for a relatively short period, and wish to return now that your relationship with your ex has come to an end.

On the other hand, you may want to move to a country where you have never lived before. This could be because of a work opportunity that has opened up for you. Or it could be because you are looking for a change of lifestyle in a different country.

Whatever the circumstances, the court will still want to know what is best for your child. But the closer your connections are to the country and the more substantial your reasons, the stronger your case is likely to be.

Think about the practicalities of the move, and potential difficulties

Even if the court agrees that a move could be a good idea in principle, you will still need to prove that you can make it work in practice. Some points to think about are below:

  • Where will you live, and how will you afford it? – The court will want you to provide clear and precise answers to these questions. If you intend to buy a property, what sort of property is it, where exactly is it located, and how much will it cost? If you will rent, how much will it cost, is a rent deposit required, and do you need to demonstrate a certain level of income before you can enter into a rental agreement?If you are going through divorce proceedings you may be seeking a financial settlement from your spouse. Do you require that financial settlement to be provided before your move is feasible? If you are not married, do you still need financial support from the other parent, and if so will you be negotiating that or making a court application to try and obtain it?It is often the case that an application dealing with the relocation of a child will need to go hand-in-hand with a discussion about financial settlement. It is therefore a good idea to get advice about all of these issues at an early stage.
  • Where will your child go to school? – Do you have a place secured for your child? Is the school appropriate for your child? What language will they be taught in, and will they be able to keep up with the lessons? How will you help your child to adjust to their new school, and do they have any specific educational needs that will need to be provided for? If the school is fee paying how will you pay those school fees?Organising school places requires a significant amount of forward planning. You should begin to investigate this at an early stage.
  • Your immigration status – If you are returning to your country of birth then you may already have the right to live and work there, and the same may be true of your child. However, you must ensure that the position is clear for you both.The situation is likely to be more complicated if you or your child is not a national of the country to which you wish to move. From the outset you must establish any immigration requirements that you will need to satisfy, and be able to show to the court that you have met those requirements. The implications of Brexit mean that this will now be more complicated for EU countries than it has been for many years previously.

The situation of the left-behind parent

A crucial factor in any relocation case is the situation of the parent who is left behind. If you are given permission to relocate and the other parent remains in England, the amount and nature of time they spend with your child will change significantly. This will have a profound impact on the relationship that your child has with the left-behind parent. The court will take this impact extremely seriously, and could conclude that the move should not be permitted as a result.

When planning your move you must therefore give careful and considered thought to the contact arrangements between your child and the left-behind parent. How often and when will they be able to spend time with each other? In which country? Who will pay for travel back and forth? How often can they speak on the phone, Zoom, or WhatsApp?

You may also wish to offer for a ‘mirror order’ to be put in place in the country to which you are relocating. The mirror order would translate the terms of the English order into the law of the country to which you are moving. It will make the order easier to enforce in that country. By offering to put the mirror order in place you demonstrate to the court that you are committed to abiding by the court’s orders about contact arrangements, and are taking the concerns of the left-behind parent seriously.

For this reason, it is worth getting advice from a solicitor in the country to which you are relocating at an early stage. You should find out how a mirror order will work, how much it will cost, and how long it will take to put in place.

Where to start?

This is a lot to think about. The best place to start is by getting specific advice on your situation.

At BDB Pitmans we have significant experience in handling international relocation cases. We are also experts in handling financial issues that may need to considered alongside the relocation.

If you are considering an international relocation, please do get in touch with us at an early stage. We would be very happy to assist you.

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