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Can I move away with my children after divorce?

A family break up either through separation or divorce is not an easy time. One common question which we, at Rayden Solicitors, get asked is, can I move abroad with my child/ children? There may be a number of reasons for a party seeking to relocate but it is not that simple. This is particularly in circumstances where an ex-partner/ spouse will not consent to the relocation. Before relocating, there are a number of factors that you should a) consider and b) be aware of.

Under English Law, nobody is able to take a child out of the jurisdiction of England and Wales without the consent of everyone with parental responsibility. If a parent takes a child out of the jurisdiction without consent or without an order from the court, then it is an offence under the Child Abduction Act 1984. So, what is parental responsibility (PR)? PR is defined in section 3 of the Children Act 1989 as:-

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. 

If you are not sure whether you or your ex-partner/spouse has parental responsibility, this should help.

If you cannot obtain the consent of your ex-partner/ spouse to relocate abroad, you will need the permission of the court. This is often referred to as ‘leave to remove’. However, if the court has already made a Child Arrangements Order (an order setting out who your child or children live with, where they live and how often they spend time with each parent) detailing who the child/ children shall live with, that person can take them abroad without the consent of the other parent for less than one month at a time.

Over recent years, the issue of external relocation has been subject to much debate. The key principle to be applied when determining an application is the welfare of the child. Such is to be considered paramount above all other considerations. Further, each case will be determined on its own individual facts. Although not definitive, there are certain considerations which are given to these applications, namely:-

  • Is the leaving parent’s application genuine?  This means that it is not motivated by some selfish desire to exclude the other parent from the children’s lives;
  • Is the leaving parent’s application realistic?  Is it founded on practical proposals which are well researched and investigated?
  • Is the opposition to the move motivated by genuine concern or driven by some other ulterior motive?
  • What would be the detriment to the staying parent and his/her future relationship with the children if the application to leave were granted?
  • To what extent would any detriment be offset by the child’s relationships in a new homeland?
  • What would be the impact on the leaving parent if their application to move abroad were rejected?

Practical Steps

A leave to remove application is by no means straightforward. Having a clear and practical plan from the outset is key. The Solicitors at Rayden Solicitors have experience in such applications and if this is something which you are either considering or, defending, please do not hesitate to contact us.

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