Child relocation and the family jigsaw
In the run up to Christmas with all the TV advertisements for toys and pantomimes and talk of nativity plays our thoughts turn to children. As a London children solicitor I know that this time of year can be hard for separated parents, particularly those who are experiencing a first Christmas without being in the same household as their children. However, it is one thing to know that your children are spending Christmas day in North London but imagine how much more difficult it is to think of your children spending Christmas overseas. That is the reality for many separated or divorced parents whose former partners have moved abroad to live, taking the children with them.
As a specialist London children solicitor working with OTS immigration and family clients from across the globe, I have advised and represented many parents who have either wanted to move abroad with their children or who have objected to their children moving overseas. These types of applications are always highly charged and emotive because if the move does go ahead it is unlikely that the parent who remains in the UK will be able to continue to see the children as often, or be take the children to football practice or attend to the school nativity play.
That may be a vivid picture of what life can be like if one parent moves abroad with the children but top London children solicitors will tell you that is the reality for the parents who face child relocation applications.
As a London children solicitor I meet many parents and talk to them about their daily routines and lives with their children to get an appreciation of why a parent is desperate to move abroad with their children or how a parent will be affected if their children are allowed to move overseas with their former partner. The best London children solicitors will also emphasise that it is not just the parents of the children who are affected by a move out of the UK. Grandparents, half siblings and cousins can also find it hard to come to terms with one parent and the children leaving the UK after a parental separation or divorce.
There is often a lot of confusion about the law relating to taking children abroad to live after parents have separated or divorced and if one parent wants to take the children back to their country of origin or wants to make a fresh start in a new country.
What happens if a parent objects to their children moving abroad?
If one parent wants to move abroad with their children and the other parent objects to the children being taken out of the UK to live in another country there are a number of alternative scenarios:
- The parent can still move overseas – but they will not be able to take their children with them unless they get the other parent’s agreement or court permission; or
- The parent could take the children abroad without the other parent’s agreement or a court order – that may amount to a criminal offence under child abduction law if the children were habitually resident in the UK at the date of their removal. The removal of the children could even lead to the children being brought back to the UK under the Hague Convention treaty and the other parent successfully applying for custody of the children; or
- The parent could apply to the family court for permission to take the children overseas to live or the other parent could apply to court for an order prohibiting the children’s removal from the UK. These applications are necessary as the family court in the UK has court jurisdiction if the children are habitually resident in the UK.
Mediation and the relocation of children abroad
If parents cannot reach agreement over whether one parent should take the children and move abroad to live then either prior to or during family court proceedings the parents can attend mediation sessions with an impartial mediator to see if they can reach an agreement. If they are able to reach an agreement the mediator will prepare a memorandum of understanding setting out the basis of their agreement and the planned access or contact arrangements.
As an experienced London children solicitor I am often asked to provide legal support to a parent in conjunction with the mediation sessions. That is because the mediator will not give either parent legal advice as their role is to act as an impartial facilitator to reach an agreement. Most parents find it helpful to know where they stand, from a legal point of view, in relation to the relocation abroad of their children. When advising a parent participating in mediation it is my job to talk about the potential court options as well as advising on the factors that would influence the court decision and assessing the prospects that a court application would be successful. Armed with that legal information a parent can feel better placed to make an agreement, knowing what the court alternatives are and prospects of success.
If the mediation sessions result in an agreement being reached I can ask the family court, where appropriate, to convert the memorandum of understanding into a binding family court order. If parents are not able to reach an agreement in mediation then I can either make an application to court on their behalf or oppose an application.
Relocation court applications
If a parent wants to move abroad with their children they can apply for court permission to do so. If a parent objects to the move they can oppose the application and they can also ask the court to order that the children live with them instead under a child arrangements order. This type of order is like the old style custody order. If a parent knows that it is not feasible for the children to go to live with him or her in the UK then the parent can ask for access or contact with the children. A child arrangements order can specify the contact and whether the contact should take place in the UK or overseas.
If a parent fears that one parent wants to take the children abroad to live without their agreement or a court order, they can apply to court for a prohibited steps order to prohibit the other parent from taking the children out of the UK.
How does a court decide a child relocation application?
When a court is deciding on whether children should move to the USA, Pakistan or the Bahamas or if the children should stay in the UK the court has to consider what the judge thinks is in the children’s best interests taking into account factors known as the “welfare checklist”.
Normally when a judge makes a decision about a child’s welfare the child’s best interests are the courts paramount consideration. When a family judge is deciding whether or not to allow children to leave the UK to live abroad the child’s interests are not paramount as the court has to consider the effect of granting or refusing the application on both the mother and father. That is why it is vital for a top London children solicitor to know all about the family life, what the child will gain and lose by a move overseas and the how the court decision will affect each parent.
Although the court is focussed on the child’s needs it is the job of a top London children solicitor to not only to look at the court welfare criteria but also the impact of a decision on the parent they are acting for in the court proceedings. That is because if either parent is emotionally distraught by the court decision and cannot come to terms with the court judgment then it is bound to have a negative impact on the children. That is something that a court carefully needs to assess and weigh up when deciding whether it is in a child’s best interests to move abroad.
OTS Solicitors and child relocation applications
If you are a parent considering a move abroad with a child or a parent facing a relocation court application then the best option is to get legal advice from the best London children solicitors. That is because preparation is the key to successfully making or opposing a relocation application.