“I am going to live abroad and take the children with me”.
That is one of the statements which is more likely than almost any other to provoke disagreement between separated parents.
One of the many problems that arises is often caused by the parent who wishes to go abroad not having discussed the plan with the other parent or doing so only at the last moment, taking the other parent by surprise. This often causes anger and fear on the part of the other parent:
- anger at not having been involved in the planned new arrangements for the children
- fear that regular contact with the children will become infrequent and difficult.
Can a parent take the children without permission of the other parent or the court?
In many cases after separation, parents are able to continue their joint parenting responsibilities by coming to agreements and ensuring that the children continue to have a good relationship with both of them. Our practice is always to discuss with clients whether the making of an agreement for continued joint parenting is possible, even when difficulties have emerged. Parents often discover that what they previously saw as insuperable problems can be overcome by sensible conversations, perhaps with the help of third parties, professional or otherwise.
However, if disagreement continues, it is then necessary to look at the legal position.
Is there a court order already in place?
If parents have previously not been able to come to an agreement concerning the arrangements for their children after a relationship has broken down, there may well be in place a court order stipulating where, with whom and for what periods the children are to live. These details can be set out in an old style residence and contact order, renamed in 2014, a child arrangements order.
If such orders exist, then the parent of a child or children is not permitted to remove from the country any child named in the court order without either
- the agreement of the other parent or
- the permission of the court set out in a new court order.
What happens if the parents cannot agree whether the children should live abroad?
It is when this situation arises that the problems can become very difficult and potentially emotionally harmful for the children.
In this case, either:
- the parent wishing to emigrate will have to apply to the court for an order giving permission for the children to be taken abroad or
- the parent here must apply for a court order to try to stop the parent who wishes to leave from taking the children.
How does the court decide?
The court will:
- hear evidence from both parents who will be able to put their point of view and
- obtain a good deal of background information about both parents and the children.
This information is very often gathered by an experienced child social worker from CAFCASS (Children and Family Court Advisory Support Service).
The CAFCASS social worker will investigate every relevant aspect of the case and produce a report to the court. This report is independent and sets out the arguments from the point of view of all those involved. Importantly, the social worker is required by law to try to establish the view of any child who is old enough to form a sensible and considered opinion.
- Just occasionally, particularly where the parents each have a different view of what the children say they want, an independent guardian will be appointed by the court to represent the interests just of the children.
What factors will the court take into account?
It is important to note that the court approaches problems such as this from a neutral standpoint. There is no predetermined assumption that the children will be better off with one parent rather than the other: for example, the days of automatically favouring of mothers over fathers, merely on account of gender, are long gone:
- The overriding consideration for the court are the best interests of the children.
- The judge will take account of what is sometimes called the welfare checklist. This is a list of factors set out in the Children Act which is designed to ensure that every relevant aspect of the welfare of children is examined.
Of particular importance to the court will be the extent to which existing arrangements for the children to spend time with each parent will be interfered with if the children are taken abroad. Every case will depend on its own circumstances. It is, for example, much easier for children to be in regular contact with both parents if they are being taken to Belgium or France or Scotland than if the planned destination is Australia or America or Pakistan.
Take early advice
These are very difficult and sensitive issues which can have a lasting impact on the lives of children. It is our strong advice to both a parent wishing to take children abroad or, if you are concerned that your child may be taken abroad by their other parent without your agreement, to take expert legal advice from us as soon as possible.