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As fans of the long-running rural soap “The Archers” will know, Helen Archer’s partner, Lee, has two pre-teen girls. His ex-wife (mother of his daughters), has been offered a job in the USA and has moved permanently with them. Despite this initially upsetting Lee, he decided to agree to the move and hopes the girls will come to stay with him during holidays.
More recently Helen’s former husband, the controlling Rob Titchener has returned to the UK from the US and we currently wait to hear whether he will try again to abduct his son Jack.
From a Family Law perspective, there is a lot for Lee and Helen to consider. It is important that both understand their legal rights and responsibilities in each scenario. Before Lee allowed his children to emigrate, he needed proper legal advice; without this, issues such as when the children will spend time with him and where, can be difficult to resolve, if things go wrong in the future. Getting Jack back from another country, if Rob takes him without Helen’s consent, could again potentially be very problematic and, depending on how the storyline develops, there may be protective steps that Helen should be taking quickly.
Moving abroad – is permission needed?
If a parent is considering moving overseas with their child, they must gain the other parent’s consent, (ideally written). If there is scope for parents to reach an agreement, then mediation, discussions with solicitors and roundtable meetings are all helpful ways to firm up arrangements.
However, if there is no agreement, then the parent wishing to move can apply to court for permission to permanently relocate the child abroad. Likewise, the parent seeking to stop the move could apply to prevent this.
If a parent removes a child under 16 from England and Wales without the other parent’s consent, this may give rise to criminal proceedings for child abduction and an order may be made here and/or abroad for return of the child to this country.
If there is a Child Arrangements Order already in place, then neither parent may remove the child from the country without written consent from all who hold parental responsibility without permission of the court. However, if that person is named in the order as the person the child lives with (a “lives-with” order), they may take the child abroad for up to 28 days without the other parent’s permission (but must return at the end of that period).
How does the court make a decision?
When considering whether an order for permission to permanently relocate abroad should be made, the court will follow the criteria in the Welfare Checklist (s.1(3) Children Act 1989):
- The ascertainable wishes and feelings of the child concerned (in light of his age and understanding);
- His physical, emotional and educational needs;
- The likely effect on him of any change in his circumstances;
- His age, sex, background and any characteristics of his which the court considers relevant;
- Any harm which he has suffered or is at risk of suffering;
- How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and
- The range of powers available to the court under this Act in the proceedings in question.
In addition, in the case of Re K (A Child) [2020], Williams J suggested the court should follow these points when considering the likely effect on the child:
- changes to housing, schooling and relationships if they remain in England;
- how likely it is for the plan to be implemented as conceived;
- any positive effects in relation to the removing parent’s ability to care for the child;
- positives and negatives about the proposed destination – environment, education, and links with family;
- the impact on the child’s relationship with the left behind parent and other extended family and how that may be offset by on-going contact;
- how parents are currently meeting the child’s needs;
- whether the application is wholly or partly motivated by a desire to exclude or limit the left behind parent’s role;
- whether the left behind parent’s opposition to the move is genuine;
- whether the parent is better able to care for the child in the new country; and
- the role that the left behind parent can play in the future.
Comment
Agreements over taking children abroad can be difficult and both separated parents should take early legal advice and start conversations straight away. These discussions can take time and a court decision, without agreement, can take many months.
If an agreement is reached, it should be reflected in an agreed court order with details about the time that the child will spend with the parent left behind following the move.
It remains to be seen how Helen’s and Lee’s scenarios play out – if Lee did not get a written agreement, will holiday time with the girls turn out to be problematic and if Rob abducts Jack, how will Helen rescue him? We wait with baited breath.
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