What do you need to be concerned about as a parent if you find yourself in this situation?

How will Brexit affect you, if you want your child to live abroad with you, after your divorce?

Divorce cases are rarely easy when children are involved and they can become even more emotionally charged when one parent lives in a different country. Now Brexit is adding an extra element of uncertainty to this most difficult of situations.

Marriages where the parents are from different countries are commonplace. So too are situations where, following a divorce or separation, one of the parents wants to move to another country and take their child or children with them maybe because of their job or to be near their family support network.

The risk is that the child or children may lose contact with the non-resident parent altogether. This is what often makes these cases particularly challenging in the family courts. Possible restrictions on movement and changes to legislation following Brexit may make the issue more contentious.

What do you need to be concerned about as a parent if you find yourself in this situation?

Permission or consent required

It is an offence to remove a child from their current jurisdiction without the permission of the court or the written consent of the other parent or every person with parental responsibility. A person with parental responsibility can be the child’s mother, father, guardian, special guardian, any person named in a Child Arrangements Order as a person with whom the child should live or any person who has custody of the child.

What’s best for your child?

When determining an application for removal from the jurisdiction, the court will always put your child’s welfare and best interests first. They will consider:

  • your child’s wishes and feelings
  • their emotional, physical and educational needs
  • how any change in circumstances might affect them
  • their age and background
  • how capable you or your former partner are of meeting your child’s needs.

The court will consider your child’s educational progress, family support and network, financial issues, language and cultural differences, the likely emotional effect of your child’s relocation on activities they are involved with along with losing contact with the wider family. Consideration will also be given to what more one parent could offer if your child were to continue residing in this jurisdiction.

Moving permanently to another country

If you are proposing to take your child abroad permanently, the court will consider the following:

  • whether your motivation is genuine and not driven by a selfish desire to exclude your former partner from your child’s life
  • whether your application is realistic founded on practical proposals which have been properly researched and investigated
  • the potential impact on you if your realistic proposal is refused
  • whether your former partner is opposing the move because of a genuine concern for your child’s welfare or whether it is driven by some ulterior motive
  • the likely impact on your former partner on their future relationship with your child if the application is granted
  • whether that impact can be offset if your child is likely to benefit from the relationship with the wider family and homeland.

If you are the parent trying to keep your child with you where you are currently living, the court will consider the situation from your point of view too, including what you can offer your child.

At present the consequences of the UK’s departure from the EU are not clear. It is important to consider enforcement before your child leaves the jurisdiction as often if there is a breach of the agreement or Order it may not be valid abroad.

What can you do?

Once a Child Arrangements Order is made you should apply for a mirror order in the court of the country where your child is relocating to so that the order can be enforced locally.

If you anticipate a problem or simply want reassurance on some of the issues raised in this article please get in touch as soon as a move is anticipated as these applications can take several months to determine.