Do I need my ex’s permission to move abroad with children?
If you’re considering international relocation with your children, our family law expert explores how involved your ex-partner can be in the decision.
22 July 2022
With international travel and migration becoming part of life for many, it’s not uncommon for children to be born to parents from different jurisdictions. Inevitably, if that relationship breaks down, the parent with care of the children may decide to seek a new life in a different jurisdiction after the separation or , or simply decide to return to their country of origin.
However, parental relocation presents a potential for difficult family disputes regarding where the children will live and who’ll have primary parental care. Below, our family law expert discusses the rules surrounding moving your children abroad, and what options you have if you can’t come to an agreement with the children’s other parent.
Do I need consent to move abroad with my children?
Whether it’s possible to move overseas with your children depends on a number of factors, but to legally do so the parent wishing to relocate must either obtain the consent of the other parent or everyone with parental responsibility. In cases where this isn’t possible, they must obtain the permission of the Court before moving the family abroad.
In most families, where parents can openly communicate, written consent is simply provided by the other parent. In these circumstances relocation can occur without any Court involvement whatsoever.
What happens when parents can’t agree on a child moving abroad?
Moving abroad with young family and children can be a difficult and emotional decision for anyone to make. Still, it can cause further complications when the other parent involved refuses to consent to the move, or can’t be located to provide the necessary permission to a single parent moving abroad. The Court assesses applications on a case-to-case basis, but the child’s welfare will always be the main consideration. They’ll consider the child's needs and what’s best for them before any consideration’s given to the relocating parent’s needs or wishes.
As part of the process, the Court will also analyse the exact nature of the relocating parent’s plans and reasoning for moving the family abroad. It must be well supported in terms of evidence, and preplanning’s therefore essential. Importantly, if the intention’s simply to place distance between the parent left behind, or inhibit communication or contact between that parent and the child, then the application’s likely to fail.
It's therefore vital when planning an application to relocate that the needs of the parent left behind are considered clearly and fully, and any concerns are addressed. This’ll ensure, for example, that regular contact between the child and that parent can be maintained for equal parental responsibility.
The Court won’t only look at frequency but also at the quality of the contact. Often, the quality of potential contact’s analysed with reference to the current shared arrangements. It’s generally accepted that if fortnightly in person contact’s the norm, that’s unlikely to be possible following parental relocation, depending on the proposed destination. Still, the Court and the parent proposing relocation must ensure that suitable alternative contact is proposed. Regular visits or extended contact during the school holiday to make up for the loss of existing arrangements is a common solution for families.
The relocating parent’s needs are also considered, together with the potential impact of refusal by the Court to permit parental relocation. For example, the relocation may be due to marriage, employment, or other personal reasons. However, this wouldn’t be a deciding factor if there’s been shared care of the children prior to the proposed relocation. In these cases, the impact on a relocating parent is diminished as the shared care arrangement takes a more important role in the decision.
What’s the first step to relocate with my children?
The first step to moving abroad with joint custody is to seek written consent of the parent who’ll be remaining. It’s essential that the plans are well thought out and explained in detail to the remaining parent.
It’s often helpful to put together a “portfolio” as a single parent moving abroad, containing details of the plan including the following things:
- Where the child will live
- What amenities are around that area
- Proposed contact arrangement
- Cost of flights to the destination and also who’s likely to bear the costs of such travel
It’s important to understand that any relocation will have a massive impact upon the remaining parent as well as the child involved. There’s often resistance at first, so a detailed plan up front enables the remaining party to make an informed decision.
When an agreement’s reached between the parties, the relocating parent should request written consent, after which relocation will be possible. Consent’s a legal requirement, and it’s vital that you don’t consider moving your family abroad without either the other parent’s written consent, or permission of the Court. To do so could result in a criminal conviction, and the correct process should always be followed before any action is taken.
What happens if an agreement can’t be reached between the parents?
If an agreement can’t be reached between parents, the relocating parent should issue a Leave to Remove application with the Court. The Court will then consider the proposed plan and decide what’s in the child's best interests, and the process will often require the involvement of independent authorities and an international social worker. They’ll carefully consider the feasibility of the plan and assess if it’s in the child’s best interests.
Specialist legal advice from a should always be sought before an application’s made. Court proceedings can take time, and it’s important that any application is both thorough and follows the correct procedure to increase the prospects of success. The legal process will also involve court hearings and, if contested, a final hearing. Here, a Judge will decide if parental relocation can occur, and if so, on what terms. Often, orders are “mirrored” in the new jurisdiction to make them more enforceable.
What do you do if you receive a notice of an application to relocate?
If you’ve received a notice of an application being made to relocate your child, you should seek immediate advice from a specialising in . They’ll be able to advise on your next steps and whether a challenge is likely to be successful. In the past, it was difficult to oppose an application for relocation, but recent developments in case law mean there’s a good chance that your challenge could be successful.
These cases are complex and always need to be handled with care. Whatever the outcome, it’ll impact the child and the wider family forever. Slater and Gordon’s experts specialise in this field and can provide unique advice and assistance tailored to your specific legal needs.
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