It is not unusual for a parent to consider moving abroad with their children, particularly after divorce. Whether that’s because their work takes them there, because their new partner lives there, or because they have some other connection with that country.
But a parent cannot take their children permanently out of the UK just because they want to. They will need the consent of the other parent (or anyone else with parental responsibility for the children) and, failing that, they will need the permission of the court.
So how will the court decide whether to give you permission to move your children abroad?
In 2001 the Court of Appeal set out a number of guidelines that the court should take into account when deciding whether to grant permission for a child to be relocated to another country. These guidelines included:
(i) That there is no presumption in favour of the parent applying for permission to relocate.
(ii) That the reasonable proposals of the parent with a residence order (i.e. what is now a child arrangements order stating that the child should live with that parent) wishing to live abroad carry great weight.
(iii) That consequently the proposals have to be scrutinised with care, and the court needs to be satisfied that there is a genuine motivation for the move, and that it is not simply intended to bring contact between the child and the other parent to an end.
(iv) That the effect upon the applicant parent and any new family of the child of a refusal of permission is a very important consideration.
(v) That the effect upon the child of the denial of contact with the other parent and in some cases his/her family is also very important.
(vi) That the opportunity for continuing contact between the child and the parent left behind may be very significant.
These guidelines were subsequently the subject of considerable criticism, in particular that they favoured the parent with whom the child was living, most often the mother, and that this amounted to a virtual presumption in favour of a mother’s application.
So in 2016 the Court of Appeal clarified matters by stating simply that there is only one principle in these relocation cases, and that is that the welfare of the child is paramount. There was no presumption in favour of mothers, and any guidance is just that – designed to be of assistance (or not), depending on the circumstances of the case.
So it may be that in a particular case the court will consider the 2001 guidance, or part of it, but that guidance will not alone decide the case. At every step of the way the court will be considering what is best for the child’s welfare.
So, the advice for anyone wishing to move abroad with their children is as follows:
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