June 13, 2014

I am divorced – can I take my kids abroad to live?

Viewers of Eastenders will have felt sympathy for Billy Mitchell when his ex-wife Honey announced that she was relocating to Canada with their two children after one of them had been offered the chance to become a model.

A distraught Billy was initially left devastated and resorted to drastic measures when he found out – burning his son’s passport and running away with both children before his cousin Phil tracked him down and persuaded him to return.

As this is the world of soaps, Billy’s nightmare ended quite happily for him – with Honey taking only their son to Canada, and leaving their daughter behind with her dad.

However, in reality it is rare for such cases to end amicably.  If you want to live abroad with your children, how do you stand legally? Here are some of the key questions we are often asked by our clients in similar situations.

1.    Do I have to get permission from my ex to move abroad?

Before deciding to move overseas with your children, you need to obtain permission from your former spouse. Under English law, nobody is allowed to take a child out of England and Wales without the permission of everyone who has parental responsibility. If you ignore this ruling, your action would be regarded as child abduction as stipulated under the Hague Convention.

2.    What if my ex says no?

If this happens, you will have to seek the permission of the court for what is known as a ‘relocation application’ or an ‘application for leave to remove’. When the court considers your request, its priority will always be the welfare of your children and not your personal preferences.

As your spouse is opposing your plans to relocate, the onus will be on you to demonstrate good reasons to the court why it should give you the go-ahead. If your plans are reasonable and genuine, the court will generally allow relocation. However, you will need to show that your reasons for going are not because you want to exclude your ex from your children’s lives.

3.    How does the court decide?

Courts are only interested in the best outcome for your children and will look at all aspects of their lives, from how they are performing at school, to their family network and the activities they are involved with. They will also look at the impact of losing contact with their extended family.

In order to satisfy the court that your intentions for relocating are genuine, you will need to show where you will be working and living, together with details of what childcare support is available. You will also be expected to explain how your children will maintain contact with mum or dad. For example, weekly Skype calls and visits back to the UK in school holidays.

As with any matter relating to family breakdown, at Jones Myers we would advise you to always put your children first and consider what is best for them. Whilst relocating may be a good opportunity for you, it is important to step back take and really consider the short and long term impact on your children of denying them regular face to face contact with their other parent.

That’s why we suggest to clients who are considering relocation to another country to think long and hard before making any decision – and to seek our advice as soon as possible, particularly if your former spouse if opposing your plans.

Should the courts be involved in these decisions or should couples be left to agree between themselves? Please share your views by leaving a comment below, drop us an e-mail or tweet us @helpwithdivorce