After a separation or divorce can I move abroad with my child?

At OTS Solicitors we have seen a significant rise in the number of requests for help involving families with international family law concerns such as how to divorce someone who lives in a different country and the effect on children in separation. As specialist London family and Immigration solicitors with an international client base, our expert family and children law solicitors are experienced in helping and advising parents on ways to resolve parenting arrangements and contact when the parents are based in different countries or even separate continents.

A separation or divorce can be a traumatic time for any family, but the stresses and worries can seem overwhelming if there are concerns about children being taken by one parent to another country to live and how contact will be maintained.

At OTS Solicitors our expert family and children solicitors have seen many enquiries about international parenting as a result of the following trends:

• Many people meeting their future husband or wife on a foreign holiday and marrying partners from other countries;

• The number of families who have settled in the UK but after a separation or divorce one parent wants to return to their country of origin with the children and the other parent wants to stay in the UK ;

• After a separation or divorce one parent deciding to emigrate, either as a result of a job opportunity or lifestyle choice. These scenarios crop up frequently with the increase in economic migration for improved career opportunities and the popularity of foreign second holiday homes.

Many parents assume that after a separation or divorce they will be able to decide on where to parent their children. It is often thought that if a mother or father of the children is the primary carer of the children then the choice of country in which the children are brought up after a separation or divorce rests solely with the primary carer and the other parent just has to accept their decision.

Top London Family Solicitors will tell worried parents that those assumptions are not right. A parent of a child who is habitually resident in the UK cannot take the child abroad to live after a separation or divorce unless:

• He or she has the agreement of the other parent and anyone else who shares parental responsibility for the child; or

• An order of the court is obtained giving the parent permission to take the child out of the UK to live in a specified country.

If the children have dual nationality or do not have British Citizenship, is court permission needed to take the children abroad to live?

Another common assumption made by parents is that if their children do not have British Citizenship or the children have dual nationality then UK court permission is not needed to take the children abroad to live and therefore one parent can elect to leave the UK with the children. The best London family law solicitors will advise anxious parents that the assumption is not necessarily correct.

It is often the case that parents are very surprised to be told by top London family and children solicitors that if one parent wants to go home to their country of origin with their children they cannot simply board a plane, even if the children do not have British Citizenship. Lots of parents question that expert advice, challenging how a UK family court has the power to make a decision about whether a foreign national child can go home to their country of origin or to their parent’s country of origin or indeed to a country of the primary carer’s choosing.

The answer lies in whether or not the children are what is known as ‘habitually resident’ in the UK. If the children are habitually resident in the UK then the UK court has jurisdiction over the children and can decide whether or not to give permission for one parent to take the children abroad to live, in the event that the other parent is unwilling to give his or consent.

Habitual residence is a legal concept so it is important that parents take legal advice from the best London Family Solicitors before decisions are taken over whether to take the children abroad to live.

What happens if a parent takes a child to live abroad without the other parent’s agreement or a UK court order?

If the child is habitually resident in the UK then the parent who takes the child out of the jurisdiction of the British family court without a specific order permitting the move commits an offence of child abduction. It is therefore essential that parents do not make assumptions that the UK court will not be concerned about their child’s welfare; either because the child does not have British Citizenship or because a parent does not think that UK children law applies to them because they are returning with the child to the parent’s country of origin.

There is no one line answer as to what ‘habitual residence of a child’ means. Over the years many judges have pondered the question of whether a specific child is habitually resident in the UK to determine if the UK court has the power to make orders in relation to the child. All the reported court cases emphasise that you have to look at the child’s and their family circumstances because the concept of habitual residence is not straight forward. For example, one child may acquire habitual residence in a country very quickly if he or she arrives with their family with the agreed plan to permanently live in the country. Contrast that scenario with the child who arrives after one parent has taken him or her to a new country without the agreement of the other parent.

Without specialist legal advice from a top family law solicitor many parents do not realise the implications of booking a flight ‘home’ with their children after a separation or divorce. The legal and personal costs of not knowing the law on international parenting can have a devastating impact on a family. That is why it is vital that parents get the best family law solicitors’ advice and plan their move out of the UK with their children, so they do not fall foul of UK child abduction laws.

Some parents think that the law will not be enforced and they would never be in the situation of facing criminal charges for taking their own child ‘home’. However, when it comes to child abduction, if a parent has taken a child without the necessary parental agreement or court order then the law can be used to full effect to recover children back to the UK. That is why it is so important to plan a move with children so that you get the outcome that meets your family’s needs.