International Child Relocation

What Relocating Abroad With a Child Involves

International relocation means moving a child's home from England and Wales to another country, permanently or for a long period. GOV.UK puts the rule plainly: you must get the permission of everyone with parental responsibility, or of a court, before taking a child abroad, and taking a child abroad without permission is child abduction.

Short trips are covered on taking a child abroad, and a move within the United Kingdom on relocation with children. Our international family law service covers the rest of a cross border case.

Who holds parental responsibility decides whose agreement you need. An unmarried father can get it by jointly registering the birth, by agreement or by court order: see parental responsibility.

Consent, Court Leave and the Criminal Line

Where a child arrangements order regulating with whom, or when, the child is to live is in force, section 13(1)(b) of the Children Act 1989 applies: no person may remove the child from the United Kingdom without the written consent of every person who has parental responsibility or the leave of the court. Section 13(2) allows removal for a period of less than one month by a person named in that order as a person the child lives with, and GOV.UK describes that exception as 28 days, so 28 days is the safer figure to work to. Section 13(3) lets the court grant the leave when it makes the order.

If no such order is in force, section 13 does not apply to you, and that is not a free hand. Section 1 of the Child Abduction Act 1984 makes it an offence for a person connected with a child under 16 to take or send the child out of the United Kingdom without the appropriate consent: the consent of each of the mother, the father if he has parental responsibility, any guardian or special guardian and any person named in a child arrangements order as a person the child lives with, or the leave of the court under Part II of the 1989 Act.

Limited defences exist, such as a belief that the other person has consented or would consent if aware of all the circumstances. The defence that consent was unreasonably refused does not apply where the person who refused is named in a child arrangements order as a person the child lives with or is a special guardian, or where the removal breaches an order of a United Kingdom court. All are defences argued afterwards in a criminal court, and none replaces consent or the court's permission.

How the Court Decides a Relocation Case

Section 1(1) of the Children Act 1989 makes the child's welfare the court's paramount consideration. In Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 the Court of Appeal held that the only principle to be taken from the earlier cases, including Payne v Payne, is that paramountcy: there is no presumption for either parent. The judge evaluates each parent's realistic proposal, compares the two, asks whether any interference with family life is proportionate, and uses the section 1(3) checklist as an aid:

• the child's wishes and feelings, given age and understanding
• physical, emotional and educational needs
• the likely effect of any change
• age, sex, background and relevant characteristics
• any harm suffered or risked
• each parent's capability of meeting those needs
• the range of powers open to the court

Section 1(2) says delay is likely to prejudice a child's welfare, so a move built around a school year needs advice early. Where a section 8 order is opposed, section 1(2A) means the court presumes, unless the contrary is shown, that a parent's involvement furthers the child's welfare, and section 1(2B) defines involvement as involvement of some kind, direct or indirect, not any particular division of time. Section 1(6) limits that presumption to a parent who can be involved in a way that does not put the child at risk of suffering harm, so the court must decide whether it applies where there is evidence that involvement in any form would put the child at risk.

No one can tell you what a judge will decide. Under section 1(5) no order is made unless that is better for the child than none, and under section 9(7) the court will not make a new section 8 order about a child who has reached 16 except in exceptional circumstances.

Evidence, Safeguards and Common Problems

A relocation case turns on the detail of the plan. The court expects to see:

• where the child will live, with evidence of the housing
• the school or nursery, and what has been said about a place
• how the household will be supported, including any job offer
• healthcare and any additional needs provision
• the immigration position of the child and the moving parent
• a costed plan for time with the other parent: flights, holidays, video contact

Immigration sits outside this page. Our family immigration solicitors advise on the United Kingdom side alongside the family case, and the destination country's rules need advice from a lawyer there. The problems we see most often are a plan built on hope rather than evidence, contact proposals that ignore distance, cost and time zones, and a late application.

Ask what the order is worth abroad. Under Article 23 of the 1996 Hague Convention on the protection of children, measures taken by one contracting state are recognised by operation of law in the others, subject to the listed grounds of refusal. Where the destination is not a contracting state, an order made here may have no direct effect there.

Where an order restricting removal is in force, section 37 of the Family Law Act 1986 lets the court that made it require any person to surrender a United Kingdom passport issued to the child or containing the child's particulars. That reaches a passport issued by the United Kingdom government, not one from another country, which matters where a child holds two. Take advice on a foreign passport as well. If a child has been taken abroad already, see international child abduction.

How a Relocation Application Works

Every case is different, but the usual shape is:

1. Take advice on the facts: whether a child arrangements order is in force and who holds parental responsibility.
2. Ask for consent in writing, with the plan attached. Agreement can be recorded in an order.
3. Attend a Mediation Information and Assessment Meeting unless an exemption applies, for example evidenced domestic abuse or urgency: see MIAM advice.
4. Apply to the court. Form C100 covers a child arrangements, prohibited steps or specific issue order, and form C2 is used instead in existing proceedings. Where a child arrangements order regulating where the child lives is in force, the application is for leave under section 13 and is made on form C1. A parent opposing a move applies for a prohibited steps order.
5. First hearing, usually after Cafcass safeguarding checks. The court gives directions and may order a welfare report under section 7.
6. Evidence: each parent files a statement setting out a realistic proposal, with the documents behind it.
7. Final hearing. The judge weighs the realistic options with welfare paramount and either grants leave, usually recording the arrangements for the other parent, or refuses it.

Court fees change: the current figures are on the GOV.UK court fees page, and you may qualify for help with court fees. RakLAW Solicitors is privately funded and does not take publicly funded work.

When Legal Advice Is Especially Important

Take advice early where:

• the other parent objects, or a child may be taken abroad before the hearing
• the destination is not a 1996 Hague Convention state
• proceedings about the child are running in another country
• there are allegations of domestic abuse, or a child is at risk
• the child is 16 or close to it, because the court's powers narrow
• an immigration position is unresolved

A court here may not make a section 8 order, other than one varying or discharging an existing section 8 order, unless it has jurisdiction under the 1996 Hague Convention or, where that Convention does not apply, a condition in the Family Law Act 1986 is met: broadly, that the child is habitually resident in England and Wales, or present here and not habitually resident in any part of the United Kingdom, or that the question arises in continuing divorce, dissolution or separation proceedings here. Once a child is habitually resident in another contracting state, Article 5 gives that state's authorities jurisdiction over protective measures. Article 5 is subject to Article 7: where a child has been wrongfully removed or kept abroad, the authorities of the state where the child was habitually resident immediately before the removal keep their jurisdiction until the conditions in Article 7 are met. See also jurisdiction and forum disputes.

Where abuse is part of the picture, protective orders can be sought alongside the children application: see domestic abuse and injunctions. If you or a child are in immediate danger call 999, and the National Domestic Abuse Helpline is 0808 2000 247.

How RakLAW Solicitors Can Help

RakLAW Solicitors is a London law firm at 42 Shad Thames in Southwark, a short walk from Tower Bridge, founded by solicitor Rakesh Prajapati. We act on both sides of a proposed move.

Our family law fees page sets out our charges, and you can book an appointment or call 0203 345 2000 for a free 15 minute consultation.