Moving home or aboard with child after divorce

If you are divorced or separated with children and are planning to move abroad there are several legal parental responsibilities regarding your children to consider.

These include, ensuring that you have either the permission of the other parent with parental responsibility or a Court Order, that you are not breaching any current Court Order that is in place and that the move will not put in jeopardy your child’s welfare.

The New Year for many parents is a new start, whether that’s a job or a new relationship, but if you are separated and have children how does this affect your family?

The starting point is that you have to obtain permission (ideally in writing) from everyone with parental responsibility before taking a child abroad, whether this be for a holiday or permanent relocation.

What is Parental Responsibility?

Both parents typically retain parental responsibility after divorce or separation (unless removed by court order), meaning you need the other parent’s consent to make significant changes to the child’s living arrangements, like in this case moving far away or even abroad.

Parental responsibility is the legal right to make decisions about a child’s upbringing, including their education, health, and residence. However, if the other parent or anyone with parental responsibility does not agree to the proposed move, you may need to apply to the court for permission to relocate with the children.

Child Arrangement Order

If you have a Child Arrangements Order in place that provides for your child to live with you then you can take them abroad for up to 4 weeks without the other parents’ consent. However if you do not have the other parents’ consent, you do not have a ‘live with’ Child Arrangements Order, or you have a ‘live with’ Child Arrangements Order but take a child abroad for longer than 4 weeks this is child abduction.

Prohibited Steps Order

If there is a prohibited steps order in place restricting you taking your child abroad this should not be breached and you would need to apply back to the family court to vary this.

Technically you do not need permission of the other parent to move elsewhere in the jurisdiction of England and Wales, however whether planning on moving house in England and Wales or abroad communication is key and the correct approach is to seek the other parent’s consent failing which you can apply for a specific issue order under section 8 of the Children Act 1989.

A parent who wants to prevent a relocation abroad or in England and Wales must apply for a prohibited steps order under the Children's Act.

The Children's Act 1989

A move, whether in this country or abroad, with children can be contentious and emotional for separated parents and disputes do inevitably arise when one parent does not want the move to take place.

The Courts always prioritise the best interests of the child and will also assess if the move is genuinely for the child’s and your benefit (e.g., better job opportunities, family support).  When deciding on relocation applications they will consider a welfare checklist in section 1(3) of the Children Act 1989 which included looking at:

• The wishes of the child concerned, depending on their age and understanding
• The impact of the move on the child’s well-being, their physical and emotional needs
• Changes to schooling
• The child’s age, sex, background and any characteristics of his which the court considers relevant
• Practical arrangements for maintaining contact with the non-resident parent
• Parental capability and the needs of the child

Child maintenance and moving abroad

If you are the non-resident parent (your children live with your ex-spouse), you must continue paying child maintenance even if you live abroad. If you are the resident parent moving with the children, you may still be entitled to receive maintenance payments from the other parent.

“As always communication is key and your children should always be put first,” says Family Law solicitor, Lucinda McWatt.

“Circumstances will obviously change over time following a separation, and a move may be needed whether that is due to a new relationship and family, or a move for better job prospects, however the welfare of children is of paramount importance and you must ensure that the move is in your children’s best interests and ensure the move does not erode the other parent’s relationship with the children”.

“Between you as parents if you relocate this might involve agreeing on a visitation schedule, facilitating virtual contact and covering travel costs for visits, if necessary. Try to reach an agreement because if both parents consent, you can move without involving the court,” advises Lucinda.

“If there is a disagreement, mediation may help resolve the issue without going to court.  However, if mediation fails, you must apply for a Specific Issue Order under Section 8 of the Children Act 1989.”

Rules for relocation with children following a divorce or separation:

• Obtain written consent from all parties with parental responsibility.
• If consent is not given, apply for a Specific Issue Order to allow relocation. The court will assess the situation based on the child’s welfare.
• Consult a solicitor specialising in family law to guide you through the process.

“There are consequences for non-compliance and moving abroad with your children without consent or a court order can be considered child abduction under UK law. This is a criminal offence and can result in serious legal consequences, including the children being returned to the UK,” said Lucinda.

How can we help?

For legal advice on divorce or child arrangements contact our Family Law solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk. We can also provide specific advice in relation to finances and pensions during the divorce process.

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.