Can I Return to my Home Country With my Child?
If you came to the UK on a Spouse Visa or Unmarried Partner Visa and you have separated from your husband, wife, or unmarried partner you may want to return to your home country rather than stay in the UK. The situation is a bit more complicated if you want to take your child back home with you.
At OTS Solicitors we specialise in family law and Family Visas so can answer all your questions on child relocation orders and your visa options to help you decide on whether staying in the UK or returning to your home country is your best option.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Do you want to return to your home country?
Our Family Law Solicitors will ask if you want to return to your home country if you mention that you plan to do so as you are in the UK on a Family Visa and your relationship has ended. We will ask this question as some people assume that they have no choice because once the Home Office is told that the relationship has come to an end, the Home Office will automatically curtail the visa giving you a short period to leave the UK.
If you are only planning to go back to your home country because of your separation or divorce and your immigration status rather than because of a burning desire to return to your familiar surroundings then our Immigration Solicitors can look at your alternatives so you and your children can stay in the UK.
The visa and settlement options include:
- Applying for a different type of visa such as a Skilled Worker Visa or a visa under the global business mobility route
- Applying to settle in the UK even though you do not meet the usual 5-year residence requirement by using the domestic violence concession to apply for indefinite leave to remain early. To use this concession your relationship must have ended because of your partner’s domestic abuse. Our Family Law Solicitors can help you apply for an injunction order if you have experienced domestic violence. We recommend that you talk to us about any domestic abuse incidents as in the UK domestic violence is widely defined to include abuse such as financial control or coercion
- Applying to remain in the UK through your child
It may be that returning to your home country is your first choice and you do not want to look at the possibility of remaining in the UK. That is your decision but our Family Law Solicitors will want to talk to you about the effect of your moving back to your home country on the size of your divorce financial settlement and on whether you are automatically entitled to take your child back with you.
For advice on your situation call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Can you take your child to your home country?
If you want to move back to your home country with your child then you may need the permission of the family court in England or your ex-partner’s written agreement before you take your child out of the UK.
You may think that the English court is not relevant to you as you are not a British citizen or because your child is not a British citizen or if your ex-partner only has indefinite leave to remain status rather than British citizenship.
The English court can decide the country in which your child should live if your child is habitually resident in England. Habitual residence is a legal concept so it is best to speak to a Family Law Solicitor about how the concept applies to your child’s circumstances. For example, even though you are in the UK on a time-limited Spouse Visa your child may be habitually resident in the UK.
If you do need your ex-partner’s agreement or a court order before you leave the UK with your child and you do not get either their agreement or a court order you could be accused of parental child abduction. Your home country could make a return order to return your child to the UK so the English court can then decide if your child should stay in the UK or be allowed to return home with you.
For family law and immigration advice call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
A parent's right to relocate with their child
In English law, the English court can decide whether your child should stay in the UK or return with you to your home country or a third country. The court has jurisdiction to decide this if the child is habitually resident in the UK.
A mother or father does not have an automatic right to relocate with their child simply because they are the biological father or mother. You also do not have the automatic right to go back to your home country with your child simply because you are the one who primarily cared for your child whilst you were living with your spouse in the UK or if you were the one who has cared for your child after your separation or divorce. Instead, if the English court has jurisdiction to make a relocation order, it will do so if it thinks that relocating is in the best interests of your child rather than based on your ‘rights.’
Is my ex-partner’s agreement needed before I take my child back to our home country?
If your ex-partner has parental responsibility for your child then you either need their written agreement or a court order before you can take your child out of the UK to live.
Under English law, all mothers have parental responsibility for their child and most fathers do. If you do not know if you have parental responsibility, call our Family Law Solicitors on 0203 959 9123 or complete our online enquiry form.
Even if your partner does not have parental responsibility for your child, they may be able to obtain an order, such as a prohibited steps order, to prevent your child from leaving the UK or they may be able to apply for parental responsibility. That is why it is best to speak to a Family Law Solicitor before you book flights for you and your child.
Getting a court order to allow your child to return to your home country with you
If your child is habitually resident in England you can apply to the English family court for a relocation order to allow you to take your child out of the UK to live in a specified country.
The court will decide your application based on its assessment of whether it thinks a relocation order is in the best interests of your child.
The court makes its decision using the welfare checklist contained in the Children Act 1989 to decide if the relocation order should be granted.
The factors a judge considers when looking at the welfare checklist are:
- The ascertainable wishes and feelings of your child (considered in the light of your child’s age and understanding)
- Your child’s physical, emotional and educational needs
- The likely effect on your child of any change in their circumstances
- Your child’s age, sex, background and any characteristics which the court considers relevant
- Any harm that your child has suffered or is at risk of suffering
- How capable each parent is, and any other person in relation to whom the court considers the question to be relevant, is of meeting your child’s needs
- The range of powers available to the court under the Children Act
Tips on successful child relocation applications
You may assume that your relocation application is straightforward because although your child is habitually resident in England one or more of these circumstances apply to you and your family:
- Your child is not a British citizen
- You are wanting to return to your home country rather than a third country
- In your home country a mother or father has more rights than the other parent so you think that if you were making the application from your home country you would easily secure the order
- Your child says they want to leave the UK
- You are the better parent
None of these factors will guarantee a successful relocation application in England. That is why it is best to take family law legal advice on how best to present your application and obtain representation for court hearings. Call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
As part of the relocation application court process, you will be asked to file a statement setting out why you want to relocate with your child and explaining your plans. You may think that your reasons are self-evident and that it is up to you to decide where to live or the school your child will be enrolled in once you relocate to your chosen country. However, this is information that the court will want and expect before it makes a relocation order.
Accordingly, to show that a move to your home country is in the best interests of your child the statement should cover:
- Why you want your child to move to your home country – the motivation or pulling force for the move
- Where you plan to live
- Proposed nursery or schooling arrangements
- Child care plans if you will need to work
- Any family or other support in your home country
- How you will deal with any potential issues such as health coverage or language issues if your child does not speak the language of your home country
- The impact of the change in culture on your child –including the positive changes and how you will deal with any negatives
- History of your relationship with your ex-partner
- Contact proposals for your child to spend time with their other parent or other close extended family. This may include grandparents or half half-siblings or cousins. Contact plans should include direct and indirect contact
- The effect of a refusal of the application on you and your child. For example, if the application is refused would you be able to secure a visa to remain in the UK with your child? Where would you live in the UK and would you be able to work and support yourself and the child? If you decided to return to your home country without your child, would you be able to return to the UK for contact?
It is important to emphasise the genuine reasons why you think a move to your home country is in your child’s best interests and to explain that your application is not motivated by your desire to get away from your ex-partner or vengeance. For example, because the relationship broke down and you, therefore, have an ulterior motive of wanting to punish the other parent by taking their child away.
Why choose OTS Solicitors as your family lawyers?
If you need to make a relocation order application and you are in the UK on a Family Visa you will need joined-up family law and immigration law legal advice. At OTS Solicitors we are experts in family and immigration law. That means we can look at all your family law and immigration options to work out the best path for you to take. That may result in an application for a relocation order. Our family law specialists will support and guide you through the application process from offering initial legal advice to representation throughout the court proceedings.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
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