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Advice

Shall I stay, or should I go?

Lottie Tyler focuses on the potential impact of Brexit on international child relocation.

Speculation regarding the impact on day-to-day life of leaving the European Union has scarcely abated since the vote in June 2016, with ‘Brexit Day’ on 31st January 2020 seeing the UK finally leaving the EU.

Numerous institutions and companies that had to date based their European headquarters in London have opted to relocate a proportion of their workforces to other European cities.

In October 2019, the Times reported that hundreds of financial firms had chosen to relocate.

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For separated parents, the possibility of being asked to move abroad, or simply seeing more secure career prospects overseas, is fraught with complexity. If a child’s parents end up living in two different countries, it is going to have a substantial impact on their upbringing.

If one parent is looking to move overseas and intending that the children move with them, then they will need the other parent’s agreement to make the move, or alternatively an order from the court. A parent whose work, and therefore livelihood, is being relocated overseas will have a strong incentive to make an application to the court for permission to remove the children from the jurisdiction (also called a leave to remove application).

If there is sufficient time, trying to reach a collaborative or mediated agreement would be preferable to court. Such an approach would give the other parent time to adjust to the idea and the opportunity to contribute to a plan. Through either of these processes it would properly be a joint decision and one therefore most likely to benefit the children moving forward.

Get more information on family mediation.

An application for ‘leave to remove’/’permission to relocate’

If the parents cannot reach their own agreement, the court will assess the strength of the application for the children to move abroad.

When the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration (s1(1), Children Act 1989).

A court approaching an application arising as a result of Brexit and subsequent international child relocation should note:

  • the welfare of the child is the court’s paramount concern;
  • there is no presumption in favour of either parent;
  • the case should be decided on what is in the child’s best interests;
  • a case will not be decided on the labels given to previously made arrangements. The court will not adopt one approach in a situation where there is a primary carer and a different one where there is a shared care arrangement;
  • the court should reach its decision by undertaking a global, holistic evaluation of the options: this requires it to:
    - conduct a welfare analysis of each realistic option for the welfare of the child on its own merits and in the context of what the child has to say;
    - conduct a comparative evaluation of each party’s plans; and
    - if appropriate, scrutinise and evaluate each parent’s plan 'by reference to the proportionality of the same'.

Considering the proportionality of the parents’ respective plans is necessary to ensure that the decision reached is not open to challenge under Article 8 of the European Convention on Human Rights, which is engaged (as is Article 6 as to the right to a fair trial) in international relocation cases.

Within this evaluation, the intended destination country and an understanding of the prospects of enforcing a court order in that country will be a critical factor.

What will the court assess?

The court will consider how the new opportunity allows for the parent to provide financially for the children, together with the extent to which appropriate housing and schools have been identified for the children, whether potential language and cultural differences have been taken into consideration, what the children’s own wishes and feelings are about a move, what the alternatives for the children would be if the application was refused and what plans are in place for the children to continue to maintain a strong relationship with the parent remaining behind.

Advice to anyone contemplating such a move, who anticipates resistance from the other parent, should be to start researching the resources available for the children in the new location and building up a picture of what their life would be like. As much information as possible can then be provided to the other parent, in advance of any discussion. It would also provide them with the opportunity to do their own research into schools, nurseries, neighbourhoods.

How can I challenge a move?

Conversely, a parent who thinks their former partner is making decisions about their children’s future without seeking agreement or providing full information about the arrangements, can consider making an application to the court for a prohibited steps order to prevent the children being taken out of the country, either at all or just until proper arrangements have been put in place, including arrangements for when that parent will see the children.

Advice is likely to be sought as to what steps can be taken in the court of the other country to ensure that that court would enforce an order made in England or Wales, or alternatively whether a ‘mirror’ court order should be made in the country where the children are now to live.

What happens if the children stay in England and Wales?

A parent moving abroad for work, whose children will remain with their former partner in the UK, might want to ensure that the other parent will allow the children to travel outside of England and Wales to see their new home.

This again is an issue that the courts can consider if the provision of thorough information at outset, and an exploration of the issues in mediation, fails to end in agreement.

Early consideration of your case is critical

A seemingly simple ‘welfare’ principle, coupled with a wide discretion, can create significant uncertainty for parents seeking leave to remove their children from the jurisdiction in cases where the other parent is actively involved in the child’s life or is making significant efforts to be involved in challenging circumstances.

However, relocating to another country to keep a job or progress a career is not insurmountable for a separated parent. There is no reason to rule anything out or narrow one’s options.

As with all decisions affecting children, the decision to move would only fail if it were not deemed to be in the best interests of the children.

Expert advice from a family law solicitor should be sought at an early stage of the planning/discussion.

Lottie Tyler is an Associate in the family law team, if you have any questions regarding this article, please contact lottie.tyler@Weightmans.com.

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