Can I Take My Child Abroad after Separation or Divorce?

Author:
Paul Hicks
Family Law and Divorce Solicitor
Date:
17/07/2019

If you plan to take a child on holiday outside of the UK, or move abroad with your children permanently after separation or divorce, you must first think about the terms of any Child Arrangement Order that the Court has put in place.

You could be in breach of this Court Order if it specifies, for instance, that your child is to live with their mother who is based in the UK, if you, as their father, then want to move with them aboard or even just take them abroad on holiday. The Child Arrangement Order may also state that the child is to live with their mother for a certain number of days per week and their father for the remaining days.

For initial advice get in touch with our Family Law Solicitors.

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Breach of a Child Arrangement Order

If there is a Child Arrangement Order in place that would be breached if you took your child abroad, either on holiday or on a more permanent basis, then you wouldn’t be able to remove them from the UK, without the prior written consent of every other person with Parental Responsibility or the permission of the Court.

If you did remove the child from the UK, then this would be a wrongful removal and the parent left behind could apply for a Court Order for the child to be returned home. The only exception to this would be if a person named in a Child Arrangement Order as the person the child lives with removes them from the UK for less than a month.

The removal of a child from one part of the UK to another (for example, from England to Scotland) isn’t a removal that requires prior written consent or the Court's permission.

No Child Arrangement Order

When there is no Child Arrangement Order in place, the position remains very much the same. The person the child lives with could take the child abroad for less than a month without permission. If the child doesn’t live with you, or lives with you for a certain number of days a week, then you’d need the written permission of everybody who has Parental Responsibility for the child or from the Court before you could remove them from the UK.

If you and your former partner can’t reach an agreement, you’ll need to apply for the Court's permission to remove your child from the UK. Before doing so, as a prospective applicant to family proceedings, you must attend a Mediation Information and Assessment Meeting (MIAM) unless you’re exempt from doing so.

There are a number of steps that can be taken by your former partner to prevent you from removing your child from the jurisdiction unlawfully. Any action to be taken depends on the circumstances involved.

For example, your former partner may formally ask you to surrender your child's passport to be held by their or your Solicitor pending the outcome of any non-Court dispute resolution process or Court proceedings. This request is usually also accompanied by a written legal undertaking (a legally binding promise made to the Court) by you that you won’t take steps to obtain replacement travel documents for your child or remove your child from the jurisdiction. If Court proceedings are ongoing, you may be asked to submit to an agreed order in these terms.

Another option includes your former partner applying for a Prohibited Steps Order, asking the Court to preserve the status quo for your child. If appropriate, the Court can make interim Orders on an urgent basis at a hearing where you aren’t present. Such Court Orders prohibit you from taking any of the following steps, pending the next hearing or the conclusion of the proceedings:

  • Changing your child's nursery or school
  • Changing your child's address or living arrangement (or both)
  • Removing your child from the UK

Making a Cross Application

In addition to applying for an interim Prohibited Steps Order, your former partner may cross apply for a Child Arrangement Order providing for your child to live with them on a full-time basis.

Your former partner may make this application for your child to live with him or her, if they think you may emigrate regardless of the Court's decision to give permission to remove your child from the UK. As the prospective applicant, your former partner will be required to attend a MIAM before making the application, unless they’re exempt from doing so.

If you and your former partner make applications to the Court, it will join the applications so that they are determined together.

When deciding any application to take a child overseas, the Court will primarily be concerned with the child’s welfare. The Judge will decide each case on its own facts and will use these to evaluate whether or not the trip or move to another country is in the child’s best interest.

The Court Will Also Consider

  • Loss of contact with the left-behind parent and other family members
  • The child’s wishes and feelings in light of their age and understanding
  • How capable you are at meeting the child’s needs
  • Any harm that your child has or is at risk of suffering if they remain in the UK

It’s very much a balancing act whereby the Judge will weigh up the benefits and drawbacks of what has been proposed within the application and decide what’s in the child’s best interests.

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