Moving overseas with children after divorce

Moving overseas is something many of us will do in our lifetime. 

If you have children and are separated from your partner there are many issues for the separated parent to consider.  

If you wish to take your child to live permanently abroad, the consent of the other parent or the permission of court must be obtained

You will need to apply for a Specific Issue order if your child’s other parent does not consent.

It is a criminal offence for a person ‘connected to the child’ to remove the child from the UK without the appropriate consent. 

Firstly, if both parents agree to the children moving, the process can be very straight forward and no legal steps are necessary. However, it would be advised to make any decisions legally binding just in case either parent withdraws consent at any time.

If you can’t agree, the ex seeking the move will need to prove to the courts the relocation is in the best interests of the children. Examples of this include, moving for a better job, financial security with a new partner, to a safer area, better education or to be closer to relatives.

The court will want to make sure the children’s relationship with the other parent doesn’t suffer, but this doesn’t mean it must remain the same. If it’s impractical to maintain the current arrangement (e.g. travelling hundreds of miles for a weekend), the court may seek a compromise, such as longer stays during school holidays.

Each scenario is different and a court will weigh up the advantages and disadvantages of relocating. The courts’ first priority will be for the well-being of the child but generally the courts want to keep both parents involved in their children’s lives.

Parental rights and responsibilities – the law

When parents separate, not all parents have parental rights and responsibilities. Under the law, the mother automatically has them.

A father has them if he was married to the mother at the time of conception, or subsequently.

If the parents were not married, a father has parental rights and responsibilities if his name is on the child’s birth certificate and the child was born on or after 4 May 2006.

A father of a child born before that date does not have automatic parental rights and responsibilities, even if his name was on the child’s birth certificate.

Moving abroad

If one parent is planning to move abroad with the child(ren), the permission of the separated parent who has parental rights and responsibilities must be sought before a move could take place.

In the absence of that permission, a court order – known as a Specific Issue Order – would be needed. 

Moving within the UK

Although a move within the UK does not require permission under the law of the separated parent, it can become a matter of dispute between the two parents – particularly if the move is geographically far away. 

Unless agreement to the move can be negotiated, this can end up in court with a Specific Issue Order being sought, or interdicts being sought to prevent the removal of the children.

Parents who have children living with them may feel that relocating is a decision they should make alone.

Resident parents may assume that their wishes and the impact on them of not making the move will take priority.

While in England, the latter point can be a material factor in balancing matters out, this is not the case in Scotland.

Recent court decisions on relocation applications

In Scotland, the court refused an order for relocation where a significant factor was the detrimental effect on the child’s relationship and contact with the non-resident parent.

Moving abroad – the test of ‘best interests of the child’

In the recent case of MCB v NMF, the court said that the parent seeking to move must show that relocation would be in the best interests of the child, in fact, from the child’s perspective, and that it would be better for the relocation to be allowed than not. In that case, the resident parent (the mother) wished to move to Cyprus for a better lifestyle. She said she had better job prospects there and would live with her mother. However, she was unable to show that there was a job waiting for her or that the education system would be better for the child than was currently in place in Scotland. The significant factor for the court here was the importance of family relationships and the maintenance of contact with the non-resident parent. The court decided that if the order was granted, the child’s contact with their father would be reduced to summer holidays and Skype/Facetime and this was compared to current extensive contact exercised on alternate weekends on a residential basis. The court refused to make the order for relocation.

Moving within the UK – advantages and disadvantages for the child

The court considered this aspect in the case of GL v JL 2017 where, after the parents had separated, the resident parent (in this case, the mother) decided that she wanted to relocate to England because her parents and extended family lived there.  While the court understood the desire and motivation to move, the important considerations were the advantages and disadvantages to the child. While the court found that there would be no real difference in terms of accommodation and education, there was nothing negative in the child’s current life which would benefit from the move. The court found that the proposed move would have a negative impact on the child’s relationship with the non-resident father. This was a significant factor in the court’s decision for the child to remain in Scotland.

Some helpful things to think about when considering relocation

There’s clearly a lot to think about in this difficult area:
a. Where the move is abroad, how reasonable is the proposed move for all involved?
b. What are the reasons for taking your children abroad?
c. The importance of contact with the other or absent parent in your child’s life
d. The importance of your child’s relationship with siblings, grandparents or extended family who are not moving
e. How will contact be maintained?
f. How does your child feel about moving?
g. Is your child of an age to express their feelings and preferences?
h. The overall effect of a move on your child, and how they may feel if permission is not agreed by both parents
i. Is it better for your child for you to take the case as far as a court order, if you feel that the move is overall beneficial and the separated parent has not agreed to give permission?

While these points from previous court decisions may be useful, each case is individual with its own particular circumstances.

Factors the court will look at

The court will examine the reasons for the proposed move and look for evidence on: 

• employment prospects
• accommodation
• education
• childcare
• finances
• environmental factors
• family relationships and maintenance of contact arrangements.

It is possible the court may not grant an order where there no compelling reason to move has been demonstrated and the child is currently enjoying a good standard of life where they have contact with the non-resident parent which would be adversely affected by the move.

We can advise you on all separation and family relocation issues.

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