Relocating with your child overseas

Whilst COVID-19 may have halted international relocation for a short period of time, international relocation cases before the family court have become more common in recent years.

There are a number of reasons why a person may choose to relocate overseas with their child. For instance, it might be that there is an employment opportunity abroad, a new relationship whereby the relocating parent/parental responsibility holder has a partner that resides overseas or, perhaps they are simply returning to their native country.

Aside from a person’s motivation to relocate overseas, practically, relocating has arguably become easier. Online platforms now present opportunities to maintain frequent contact with the remaining parent/parental responsibility holder and working life is more flexible so the relocating parent/parental responsibility holder may be able to facilitate frequent trips back to England.

The court’s approach to international relocation

For a long time, the leading international relocation case was Payne v Payne [2001] which set out guidelines that the court looked to when determining international relocation applications. The case of Payne involved a mother seeking to relocate with her four-year-old daughter to New Zealand. The mother was granted her application to relocate and the father appealed. The court of appeal dismissed the father’s appeal and set out the following guidelines in reaching the decision:

• The welfare of the child is always paramount.
• There is no presumption in favour of the applicant parent.
• The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
• Consequently, the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
• The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
• The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
• The opportunity for continuing contact between the child and the parent left behind may be very significant.
• The family court referred to the guidelines from Payne for many years. However, post-2010, legal practitioners began to criticise the guidelines for placing too much weight on the effect of a refusal to relocate on the applicant parent (usually the mother).

Today, the case of Payne is by no means redundant, however, the cases of K v K [2011], Re F [2015] and Re C [2015] have re-focused the court’s approach to determining international relocation cases, clarifying that the focus of the courts must be on whether relocation is in the child’s best interest. Every case must have regard to the criteria under the welfare checklist set out at section 1(3) The Children Act 1989:

1. The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
2. His physical, emotional and educational needs;
3. The likely effect on him of any change in his circumstances;
4. His age, sex, background and any characteristics of his which the court considers relevant;
5. Any harm which he has suffered or is at risk of suffering;
6. How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and
7. The range of powers available to the court under this Act in the proceedings in question.

More recently, in the case of Re K (A Child) [2020], the court has expanded upon the welfare checklist, presenting what is described as the “FKC Payne composite” which expands upon the type of evidence the court should consider in line with the welfare checklist. For instance, it is suggested that when considering point 3 of the welfare checklist, the court consider the following:

• Changes to housing, schooling and relationships if they remain in England;
• How likely it is for the plan to be implemented as conceived;
• Any positive effects in relation to the removing parent's ability to care for the child if they move abroad;
• Other positives and negatives about the proposed destination country in terms of environment, education, and links with family;
• The impact on the child of moving permanently to another country in relation to their relationship with the left behind parent and other extended family; and
• To what extent that may be offset by on-going contact and extension to other relationships in the new country.

Consent to remove a child

If you are considering moving overseas with your child, you must gain the consent of the other parent or holder of parental responsibility. This should preferably be written consent. In the first instance, we would recommend that you try to resolve the issue amicably, preferably through mediation with advice from solicitors in the background or through solicitors’ correspondence. We would encourage you to start discussions with the remaining parent/parental responsibility holder well in advance of your intended move date. It is important that you demonstrate that you have the child’s best interests at heart, that you have carried out extensive research and are able to demonstrate that you have thought about the practicalities of facilitating the child’s relationship with the remaining parent.

Please note that if you do not gain the appropriate consent and remove a child under the age of 16 from England and Wales then it could give rise to criminal proceedings for child abduction and an order may be made to return the child.

If you have a child arrangements order (CAO) in place, then you cannot remove a child from England and Wales without the written consent from those holding parental responsibility or, without leave from the court, save that if the person named in the CAO is the person that the child lives with, then they may take the child out of the country for up to 28 days without permission.

Making an application to remove a child

If you cannot resolve relocation issues with the other parent or holder of parental responsibility out of court then you must apply to the court for Specific Issue Order under section 8 Children Act 1989. We have set out a generic overview below which details the steps the applicant (the parent/parental responsibility holder) must take:

1. You must attend a Mediation Information and Assessment Meeting (MIAM) before making an application (as must the other parent) unless an exemption applies.
2. A C100 form applying for the Specific Issue Order must be filed at the local Family Court (a C1A form may also be filed if there is a risk of harm to the child). This application will be served on the respondent (the remaining parent/parental responsibility holder).
3. The respondent will file an acknowledgement of service form indicating whether or not he objects to the relocation plan. Please note, the respondent may choose to apply for a Prohibited Steps Order if they consider there is a real risk that the relocated parent will take the child overseas without their consent.
4. The court will send the application to CAFCASS who will make contact with both parents to make initial enquiries relating to safeguarding issues on behalf of the court.
5. The case will be listed for a First Hearing Dispute Resolution Appointment (FHDRA). A court timetable will be put in place at this hearing which may include directions for filing evidence (evidence in support of the application/ evidence to response to the application), expert evidence, a report from CAFCASS or an independent social worker an order for a subsequent hearing).
6. There may be a subsequent hearing for the court to determine that it is satisfied that it has obtained appropriate evidence and that a final decision can now be made.
7. A final hearing will be listed whereby both parties are given the opportunity to provide evidence and be cross-examined. A final hearing usually takes place over a number of days due to the extensive evidence to be heard in international relocation cases. For instance, evidence may be heard from the CAFCASS officer (or independent social worker), expert witness and/or other witnesses e.g. grandparents. The judge will then provide her judgment setting out her reasons for granting or not granting permission to remove the child. The judgment may be made at the final hearing or be reserved to a later date. If permission is granted then the order is likely to contain detailed contact provisions to support contact with the respondent. It may also include an undertaking that the applicant secure the same order at their relocation destination. This is known as a mirror order.

Tips for getting the most out of your proposal to relocate

We recommend that you seek specialist family law advice as to how to best present your case to relocate. The statement in support of your application should be clear, well-structured and child focused. It should deal with the practical arrangements relating to your child’s living, educational and healthcare arrangements on relocation. You should also demonstrate how you intend to keep in contact with the remaining parent/parental responsibility holder. For instance, how often do you propose to fly back to England and how will you cover the costs? You may also want to set out a timetable for indirect contact which may consist of weekly video calls and regular email/text updates.

Tips for opposing a proposal to relocate

We would recommend that you seek specialist family law advice on how best to oppose an application to relocate. Ultimately, you will need to satisfy the court that it is in the child’s best interest to stay in England and Wales. We suggest that you work through the welfare checklist when presenting your response. Alternatively, if you do not feel that you can present compelling reasons as to why your child should stay in England and Wales then you may wish to instruct your legal representative to concentrate on putting safeguards in place and ensuring appropriate provision to spend time with the child is made.

For expert family law advice on child arrangements or other international family law issues please contact a member of our Family team.