People & Places
Making a clean break
Claire Colbert, a senior solicitor at Blake Lapthorn, explains how to jump through the various legal hoops facing those emigrating with children from a previous relationship
The decisions and processes involved in emigrating are difficult enough but some families find it is made much more complex due to the legal requirements for removing a child permanently from the jurisdiction.
If both natural parents are emigrating with their children, there is no requirement for the court to intervene or be involved in any way. Judicial intervention comes when one natural parent is not going and in that situation where the other parent is taking the children with them, the formal consent of the other is required. In some cases the consent is willingly provided and there is no ongoing difficulty, however this is not the most common response given by a parent who is asked if their children can move permanently abroad without them.
If the non-emigrating parent does not agree with the move and therefore will not give his/her consent, the emigration process is often brought to a halt whilst the issue is resolved. The law in this country prevents children being removed permanently from the jurisdiction without the agreement of all persons who have parental responsibility (primarily biological parents). The refusal to consent is not however the end of the road, as the parent wishing to emigrate can apply to the court under the Children Act 1989 to obtain the court's consent to the move, overriding the other parent's refusal.
In situations where the non-resident parent has been having contact with the children and an involvement in their daily lives, the court has a difficult decision to make in deciding if the other parent's request to emigrate is in the best interests of the children.
The decision is made by reviewing the welfare checklist within the legislation and in doing this the court will investigate the precise plans for the children including issues such as:
- The education and schooling in the destination country and how such a school meets the specific needs and interests of that child, the curriculum that would be studied and any extra curricular advantages of the relocation along with the sports, recreational and social prospects available to the children in the new location.
- Why the move is necessary, the business, professional and financial benefits of the move and how this would benefit the children.
- The size, location and suitability of the proposed new home if this has already been identified or likely available options in other circumstances. In so far as the location of the new home is concerned, there may be a review of the suitability of the surrounding area for children, the crime levels and public services available.
- Medical care and facilities available, particularly if the child has any health difficulties.
- Any disadvantages that would be caused to the children if the family were not granted leave to move abroad.
One of the most important factors that great weight is given to is the contact that would be given to the parent that is left behind. Modern technology has given the court more options to consider to protect the children's contact with the parent who remains in this country, including indirect contact by webcam, video conferencing technology, email and of course telephone. They will however also be looking to see how direct contact (in person) can be protected and maintained and the costs and practicality of such contact depending on the location of the move and age of the children. One option often considered is longer periods of contact with the parent in the UK during holiday time to compensate for the loss of direct contact during term time. Obliviously the child will not be just losing direct, regular contact with the non-emigrating parent but also their extended family that may be living in the UK. This is often another objection the non-emigrating parent raises when asking the court to refuse the application to remove the children from the jurisdiction.
The court has to balance the emigrating parent's liberties and rights to move, against the children's right to an ongoing relationship with both parents. This can be very difficult when both parents are acting in what they think is in the best interests of the children. The court is not able to stop the emigrating parent from leaving, but is able to stop the children going with them if, when reviewing the options and the particular facts of the case, they decide that the children should not be allowed to permanently leave the jurisdiction.
Any application to remove children should be supported by clear thorough evidence of why the move is proposed and what the benefit will be to the children in question whilst showing contact with the other parent would not suffer as a result. Any application to prevent/stop the children being removed needs to be focused on why the move is not in the best interests of the children and must be compelling.
A case we were recently instructed to deal with, involved a teenage girl who had not had contact with her father for over five years. His consent was still required to enable the child and her mother to emigrate. The mother provided detailed information to the court about the school and education system to where the child was moving and information about the proposed home and location she would be living in with the child. The father argued that the move abroad could effect the child's education and career options and would make contact more difficult in the future. The court decided that there should be provision for ongoing indirect contact and that the balance of the legislative factors meant that the move was in the child's best interest.
Another case recently decided was made more complicated by the fact that the children were being separated from an older half-sibling who remained with the non-emigrating parent. In such a case the effect this separation would have on the children was an important factor the Judge needed to take into account when deciding if such an application should be successful.
A court application can be avoided if both parents obtain legal advice. Case law in this area is helpful and can mean the parents are clear on their chances of success in making or preventing such a move. However, each case is decided on its specific facts and therefore either parent may be inclined to ask for the court's view on such an important and emotional decision. Specialist legal advice from a solicitor practicing in this area of the law is vital.
Contact:
For more information please contact Claire Colbert, a senior solicitor in Blake Lapthorn's Family team, on 01865 254 273 or at claire.colbert@bllaw.co.uk.