If you are a French national living in England & Wales (referred to as England for simplicity) and considering a return to France with your children following a relationship breakdown, you will need to understand the legal implications and requirements of that decision. We are regularly instructed to make applications for relocation.
The first thing to understand is the concept of ‘habitual residence’ under English law.
Whether your children were born in France and you are an expatriate family living in the England or your children were born in England but hold dual-nationality, they will be deemed ‘habitually resident’ in the UK.
This means that they are deemed to be under the ward of the English court and if there is no consent from the other parent that they should relocate to France, the final decision will rest with the English Family Court.
Relocation is a binary issue, meaning there is no ‘middle ground’. Either the parties reach an agreement and/or the court makes a positive determination about the relocation. If there is no agreement or the court does not grant the application the children will continue to reside in England until they reach the age of 18.
The reasons why one parent may want to relocate are varied, i.e. to return ‘home’ to where they grew up, to be closer to their support network, for financial reasons, for a career opportunity or to be closer to a new partner. One advantage with France is that it is relatively close geographically, connected by the Eurostar and numerous air flight routes. If the children have maintained strong cultural and practical links with the country, the proposed move may be less disruptive to the children.
What does the law say?
You cannot take a child out the jurisdiction of England & Wales without the consent of everyone else with parental responsibility or a court order. To do so constitutes child abduction and can result in court proceedings to return the children and potential criminal prosecution.
The legal considerations
The children’s welfare is the court’s primary consideration. The court will make a decision based on what is in the children’s best interests. In doing this, they apply factors set out in the Children Act 1989 known collectively as the ‘welfare checklist”. You should therefore consider the following:
- What the children’s views would be in respect of the proposed move;
- How the children’s physical, emotional and educational needs will be affected by the proposed move;
- The likely effect on the children of the change that the proposed move would bring;
- The relevance of the children’s age, sex and background in relation to the proposed move;
- Whether the children have suffered harm or likely to suffer harm;
- How capable each parent is of meeting the children’s needs.
Is there a genuine reason for wanting to relocate with the children?
It is important that a detailed explanation is provided for the reason for the proposed relocation. As discussed above, this could be for a variety of legitimate reasons but must not be an attempt to prevent the other parent from seeing the children.
The court will be weary of historical acrimony and adverse allegations relating to the children (save perhaps where they are very serious and proven allegations), and generally a poor co-parenting relationship, for fear that as soon as the parent has settled in France, future contact with the parent left behind will be frustrated.
Do you have a well thought out proposal for the practical arrangements?
If consent from the other parent is not forthcoming, you will need to do some detailed research and preparation in putting together your proposals for the English court. Such research will need to include the practical arrangements for the children, covering (inter alia):
- Accommodation options for you and the children;
- Schooling for the children and details about the enrolment process;
- How you will generate an income to support yourself and the children;
- Opportunities for extra-curricular and social activities for the children;
- The support network you will have;
- Any plans to assist the children to adapt to their new environment;
- The timing of the move and how to minimise the impact of the move on the children; and perhaps most importantly;
- Realistic proposals for the other parent to spend time with the children (by way of both direct and indirect contact).
What is the detriment to the other parent and their relationship with the children if the application is successful?
There is a presumption under English law that both parents should be involved in a child’s life, unless evidence to the contrary is shown. The courts will be proactive in ensuring that each parent has as significant role in a child’s life as possible.
You need to ensure that you have thought about realistic contact proposals (including some consideration of cost – subject to the family’s financial position) and how you will facilitate your children’s ongoing relationship with their other parent.
The different process options
The decision to relocate with your children is not straight forward. It is vital to prepare a strategy from the outset as this will have an impact on the chances of being able to obtain consent from the other parent or succeed in an application to the court. You need to be aware of the strengths of your case, so that you can highlight them, and the weaknesses of your case, so that you can deal with them.
Direct agreement
If you are a French family but the other parent does not want or cannot return to France (say for career/employment reasons), there may be less opposition to a proposed relocation, provided that plans and arrangements for the children are agreed and in place before departure. The parent left behind may wish for there to a formal Child Arrangements Order (CAO) in place, recording the agreements and provide recourse in the event the leaving parent breaches/reneges on the agreements.
A formal CAO can be mirrored by a French agreement and similarly registered in the French Tribunal, in order to ensure it can be enforced. This will be a particularly important consideration following Brexit and will require obtaining specialist advice from a French family lawyer.
Mediation
One forum for reaching an agreement by consent will be mediation.
Given the complexity of this area of the law, it will remain important to have taken legal advice before undertaking this process option and giving careful consideration to the selected mediator, in order to ensure that they have experience in this particular area of English family law.
Court applications
Relocation cases are difficult because of the binary nature of the outcome and the sense that one parent will ‘win’ and the other will ‘lose’.
Often in these situations, a court application is inevitable because reconciling the opposing wishes of two estranged parents is difficult. One parent continues to wish to relocate for one of the reasons set out above and the other parent objects to the move, usually because the impact is that they will be further from the children making seeing them more difficult.
If you are unable to get consent from the other parent then you will need to make an application to the court for permission.
The key stages in the court process can be summarised as follows:
- The parent who wishes to relocate with the children will need to make an application to the court for permission which is often referred to as an application for ‘leave to remove’. You may need to attempt mediation before the application is made.
- Following the application being made, CAFCASS (The Children and Family Court Advisory and Support Service) will be appointed by the court to carry out safeguarding checks. The CAFCASS officer does this by speaking to both parents and contacting the police and local authority to find out whether there are any welfare risks to the children. They will then prepare a letter to the court summarising their findings.
- The first court hearing (the First Hearing Dispute Resolution Appointment) is listed and both parents will need to attend, usually with legal representation. The hearing provides an opportunity for parents to have discussions outside of the court room and try to come to an agreement. If an agreement is not possible then the court can deal with interim contact arrangements and will order directions to progress the case. These directions include, for example, the filing of witness statements by each parent, whether there is the need for any expert evidence and the preparation of a full welfare report either by CAFCASS, or an independent social worker. The latter option is open to parents who agree to privately instruct, and pay for, an independent social worker of their choice.
- The court may list another hearing (the Dispute Resolution Appointment), to give another opportunity for negotiations and to provide further directions to ensure that the case is ready for the final hearing.
- Witness statements are prepared by both parents setting out their case and proposals; the applying parent in favour of the move and the other parent against the move. These documents are very important in relocation applications and are usually very detailed and lengthy.
- The welfare report is prepared by the CAFCASS officer or Independent Social Worker. The individual preparing the report will speak to both of the parents, the children, family members, schools and medical professionals to assist them. They should then provide a detailed evaluation and assessment of the situation and will recommend to the court what they believe is in the best interests of the children.
- The Final Hearing will take place. The judge hearing the case will have a bundle of documents including the application, the parents’ statements and the welfare report. Usually, both parents and the author of the welfare report will be required to give oral evidence. It is unlikely that the judge will want to hear from the children in court. The judge will then consider all of the evidence and will make a decision to grant or refuse the application. A court order is then prepared to reflect the judge’s decision.
Arbitration as an alternative to issuing court proceedings
There is also the option to enter into Arbitration as an alternative to issuing court proceedings if both parents agree.
If you are considering relocating with your children to France following divorce or separation, you need to obtain either consent of the other parent or of the court to do so. You need to have a clear strategy and proposal in place and seeking legal advice at an early stage is key to assist you with this. Likewise if you find you are on the receiving end of an application to relocate, we recommend you take early advice to put yourself in the strongest position to defend the application.
