If you are planning to move overseas after your separation or divorce, your head may be filled with all the practical arrangements, like finding somewhere to live and booking a reputable removal company to transport your belongings overseas. However, if you have children with an ex-partner, and they will be accompanying you on your new life abroad, you also need to consider the legal implications of your planned move and, if you need to get consent, how to go about it.
In this article, we look at some of the legal considerations of a move overseas with your child after a separation or divorce.
Does a parent need permission to move overseas with their child after a divorce?
If you are your child’s primary carer, getting permission to move overseas with them may feel unnecessary. However, child law in England & Wales says you need the permission of the child’s other parent, or anyone else with parental responsibility for the child, in order to take your child overseas to live.
If you cannot get the other parent’s agreement to your child’s planned move, you can make an application to the court for an overseas relocation order. The order will specify the country your child will be moving to, so it is not a blanket permission to move abroad at a chosen time but a country-specific order.
The importance of legal advice before moving overseas
If you are from overseas, or part of an international family, it is often assumed that you will not need the permission of your ex-partner or a court in England & Wales to move home with your child. However, it is best to check if permission is needed because you do not want to fall foul of the law regarding children and be prevented from leaving with your child or your child being ordered to return.
A parent does not need a former partner’s consent to leave the UK, but you will need consent for your child to move overseas if your child is classed as habitually resident in the UK.
Habitual residence
Habitual residence is a legal concept. A child’s habitual residence is not necessarily the same as your domicile or your child’s domicile. For example, you may be in the UK on a skilled worker visa or family visa. You may not view the UK as your ‘home’ if you always planned to return to your home country or move again to further your career. However, your child can acquire habitual residence in the UK through your settling down, enrolling the child in school and by your doing all the usual activities to make a country feel like home, even though you know your time in the country will be limited as you never planned to apply for indefinite leave to remain or British citizenship.
If you are unsure if you need permission because of your family circumstances or whose permission you need, then it is best to take legal advice before you commit to your planned move overseas. That way, you have plenty of time to negotiate an agreement or secure a relocation order.
How to obtain court permission for a move overseas with your child
It is always preferable to try and negotiate an agreement with your ex partner over your child’s planned move overseas. The negotiations could include detailing the contact arrangements or even agreeing to an international family law mirror order in the country you are relocating to so your former partner has the security of an enforceable contact order if concern about contact not going ahead is the stumbling block to securing their agreement.
If you have to apply to the court for an overseas relocation order, it is best to give yourself plenty of time to make your application and to get a decision before your planned move. When determining a relocation order application, the court will assess what order it believes to be in the best interests of your child, so it is good practice to frame your case about why the move is good for your child. For example, the opportunity to grow up with a large extended family or experience a new culture or excellent education.
What happens if you do not get permission to move overseas with your child?
If you do not get the permission from your former partner or the court to move overseas with your child then you can still make the move, but your child cannot move with you. Sometimes parents contemplate moving without an agreement or court order but, under UK law, you could be found guilty of child abduction. In addition, your child could be made the subject of a return order to the UK where the English court would decide whether your child should live with you in the UK or overseas or live with their other parent and have contact with you.
If you take a child overseas without the other parent’s agreement or a court order then you have more of a battle to get court permission. That’s why it is best to try and negotiate an agreement or secure a court order.
Contact IMD – International Family Law Solicitors
In this difficult time, our specialist multi-cultural team of international family solicitors can offer you expert advice and representation in all aspects of divorce, separation, finances and issues relating to children. For an initial consultation, call the International Family Solicitors at IMD Solicitors on 0330 107 0107 or request a call back.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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