Child relocation abroad – the legalities

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Moving overseas with kids

Families who are looking to relocate abroad, considering a return home or moving on to another country, must be aware of the legal consequences of the move, both in terms of planning and potential consequences when you get to the destination.
Living an international lifestyle can have many advantages.  It can provide opportunities to discover new cultures and explore a variety of different experiences and challenges. Families who are looking to relocate abroad, considering a return home or moving on to another country, must be aware of the legal consequences of the move, both in terms of planning and potential consequences when you get to the destination. Families that include children from former relationships in particular have even more considerations.

Getting the right advice in advance is essential to avoid problems further down the road. Here are some suggestions relating to relocating with children.

Planning

Planning is a key part of your move and will be particularly pertinent when relocating with children from previous relationships.

In addition to researching the best place to live or the education system there are other important elements about moving abroad that you should consider. For example:

  • Whether there are any cultural differences which may affect your family life. For example, couples who are unmarried or in same sex relationships may want to check how their relationship will be perceived in the new country. Will there be problems if, for example, their relationship in not formally recognised?
  • You should also ensure that you get advice regarding your immigration status in the chosen country and whether your visa status could be held independently of your spouse on separation or divorce. If your immigration status is dependent on another person it  would be advisable to be aware of consequences if something were to happen to them, if they were to unexpectedly return home or if the relationship breaks down.
  • It may also be sensible to consider the legal consequences of future relationship breakdown and take steps to update or create a nuptial agreement to ensure that, if necessary, your affairs are handled in the manner you intend.

You will also need to consider making a plan to return before you go. It may seem like a long way off but if there is an intention to return home in the future then you should record this somewhere in writing and include the intended timing or circumstances for any return if known. This can avoid arguments with the other parent at a later date and may help if there is a dispute about where children should live in the future.

Consent

If the other parent refuses to allow the child to move abroad with you then you will need permission from the court.
Moving to another country to live will almost certainly mean that you, and your children, will become habitually resident there.

If you take the child to live in another country without the other parent’s consent then you could be committing child abduction and steps could be taken for the children (child) to be returned.

Child Abduction is a criminal offence even if it is committed by a parent and the wrongful removal (or retention) may severely hamper any future attempts to move internationally with your child/children.

The UK is signed up to the Hague Convention on the Civil Aspects of International Child Abduction 1980 along with 98 other countries who have agreed to return children swiftly to their country of habitual residence in cases of international child abduction. Even if the destination is not a signatory to this convention, steps can be taken to return children.

If the other parent refuses to allow the child to move abroad with you then you will need permission from the court. If you think that the other parent might object to a move then it is important to address this and obtain legal advice as soon as possible as it can take between 6 and 12 months for a dispute to be resolved through the court.

Getting there

Some countries and airlines require parents to produce the written consent of the other parent to travel in a particular form.
In order to avoid any problems travelling to your new destination it is important that you have the right documentation with you. In addition to tickets and passports you should consider taking copies of marriage and birth certificates, family court orders or parental agreements together with any relevant translations.  This may seem excessive but such documents may be required by border agencies. They can also be helpful if only one parent is travelling with the child particularly if they do not have the same surname as the child.  Some countries and airlines require parents to produce the written consent of the other parent to travel in a particular form.  It is advisable to check the relevant country/airline requirements as far in advance of travel as possible.

For parents who travel regularly with children, e.g. who make regular trips home, then it may be worth securing a general travel consent in writing from the other parent to ensure smooth travel if traveling without them.

Returning home or moving on

If habitual residence has been established in another county then it will almost certainly be the law of that country that governs any disputes about the care of the children.
A return home will hopefully be a simple matter of informing all of the relevant people and making the necessary arrangements when the time comes. However, disputes may arise particularly if there has been a breakdown in a relationship and there is a disagreement about when, or if, the children should return home. If habitual residence has been established in another county then it will almost certainly be the law of that country that governs any disputes about the care of the children. It is very important to get local advice and avoid taking any unilateral action that might result in abduction proceedings.

Similarly, when international families separate it may be that jurisdiction for divorce or financial proceedings could take place in more than one country. Where this might be an issue it is important to get advice quickly to ensure that your position is protected as the proceedings which are issued first in time may have priority.

Conclusion

Moving abroad requires careful planning. You should obtain legal advice as soon as possible. The more you can do in advance to ensure that your move goes smoothly the better. It is essential that you fully understand the potential impact of the relocation of your family life now and in the future.

The contents of this article are for reference purposes only. They do not constitute legal advice and should not be relied on as such. Legal advice should always be sought for your specific circumstance.

Emma Nash
The International Family Law Group LLP
Emma.nash@iflg.uk.com
www.iflg.uk.com

 

Sponsored article by The International Family Law Group LLP

 Emma Nash is an Associate at IFLG. She provides clients with advice and support in relation to a comprehensive range of family law issues including child maintenance, financial provision on divorce, and financial claims by cohabiting couples.

The International Family Law Group LLP is a specialist law firm, based in London, looking after international and national families. iFLG handles a plethora of financial and forum matters linked to a relationship breakdown and matters relating to children (child relocation, abduction, adoption, surrogacy, contact and residence issues). As accredited international family law specialists iFLG regularly receives instructions from foreign lawyers concerning matters in England and Wales. iFLG is also regularly instructed by ICACU (Central Authority for England and Wales) and we also provide expert evidence abroad in family cases.

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