Law on Leaving the UK and Returning to Your Home Country With Your Children After Separation or Divorce
If you are not a British citizen and are not settled in the UK you may assume that UK laws don’t apply to your children. You may think you and your children are free to leave the UK and return to your home country following your separation or divorce.
UK family law may apply to your children even if you and your children are not British citizens and even if none of you have Indefinite Leave to Remain or Settled Status.
In this blog, our Family Law Solicitors highlight the law on leaving the UK and returning to your home country with your children after your separation or divorce.
Online and London Family Law Solicitors
For family law legal advice call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Returning to your home country after your separation or divorce
Under UK immigration law, you can return to your home country if you split up from your husband, wife, civil partner or unmarried partner. However, you may need:
- Home country immigration legal advice if you are no longer a citizen of your home country as you may need a visa to re-enter
- UK immigration advice before you leave the UK if you plan to return to the UK to visit your children or to come back to live in the UK later. UK Immigration laws frequently change so you shouldn’t assume that you will still meet the eligibility criteria for a Visitor Visa, Work Visa or Family Visa
- Expert family law advice to work out if it would be best for you to stay in the UK until your divorce is finalised and you sort out a divorce financial settlement or to obtain a child arrangement order
The law is more complicated if you have dependent children and you want them to return to your home country with you. You will still be able to return home but you may need the other parent’s written agreement or a court order from the family court before you can leave the UK with your children.
Returning to your home country with your children without permission
If you leave the UK with your children and don’t first get permission (the written agreement of everyone else with parental responsibility for your child or a court order) then you could be accused of parental child abduction. That is a criminal offence.
If your home country is a signatory to the Hague Convention, court proceedings could be started in England for a return order. A return order means your child must return to England and the English court will decide whether it is in your child’s best interests to be brought up in England or return to their home country. The return order does not require a parent to return to the UK to accompany their child but most do so to fight for custody.
Family Lawyers will advise you to get permission before you go as you are more likely to get permission then rather than after fleeing the UK. If you know your former partner won't give their consent our Family Law Solicitors can advise you on the application process to get a relocation order and explain how the court will assess whether it is in your child’s best interests to stay in the UK or go to your home country with you.
When does a parent need to ask court permission for a child to return to their home country?
It is commonly assumed that English family law only applies to the children of British citizens or the children of parents who are settled in the UK or to children who have British citizenship. These assumptions are wrong.
If your child is in the UK on a Dependant Visa and is a national of your home country you may still need an English court order (called permission to leave the jurisdiction or a relocation order) if their other parent won't agree to the child returning to your home country with you. That’s because English court jurisdiction is based on your child’s habitual residence and not their nationality, your nationality or immigration status.
The family law advice is the same whether your child’s other parent is a British citizen or, like you, in the UK on a Work Visa or Family Visa or settled with Indefinite Leave to Remain. The key issue on jurisdiction is your child’s habitual residence and that’s a different legal concept to their nationality or domicile.
Planning your return to your home country with your children after your separation or divorce
When you separate from a partner your first thought may be to get home to your family and to what is familiar to you. Whilst that’s an understandable reaction it could cost you custody of your child and impact on any divorce financial settlement. That’s why you need to plan your return.
First, you need family law advice on whether you need court permission and, if you do, how to go about getting your partner’s agreement or a relocation order. Sometimes the other parent will agree to your return to your home country if they can be persuaded that the court is likely to make a relocation order and by agreeing to your move with the child, they are getting your commitment and cooperation to making contact work. As part of the agreed relocation order, there can be provision for contact with the parent remaining in the UK, including Facetime and holiday contact in your home country or the UK. You can also agree to a mirror order being made in your home country so your ex-partner can enforce the contact agreement as part of your negotiations to secure your relocation order.
Secondly, you need family law advice on your divorce financial settlement and the impact of returning to your home country on the financial settlement. For example, if you leave without permission this is likely to affect how much you receive as you won't be able to play a full part in a financial application and your ex-spouse will want your behaviour taken into account when deciding on the financial court order. For example, if you are returning to your home country, will your housing costs or earnings capacity be affected by the move overseas and would it be best for you to obtain a clean break order and a one-off lump sum payment?
Our specialist Family Law Solicitors can discuss all the legal implications of a return to your home country with you whilst our Immigration Lawyers can advise on all your immigration law needs.
Online and London Family Law Solicitors
For family law legal advice call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
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