Relocating Abroad With Children
By Eileen Pembridge
Posted: 1st October 2015 09:11
Whilst we pride ourselves in this country on our Diversity of Ethnicity, culture and creed, and enjoy the benefits of international marriages and other relationships there is one area of family law where this can cause heartbreaking litigation. This is where one parent of a child from such a union wants to move abroad—typically but not necessarily ‘back home’ with that child, whilst the other wants to ‘stay put’.
Few parents can view with equanimity the removal of a child from a situation where meeting up regularly is the norm and so almost inevitably such divergence of plans leads to an application to the court for a child arrangement order with permission to remove the child or children from the jurisdiction of the court—which means England and Wales.
For many years the typical ‘removal’ was by a wife with care of the children who remarried and wanted to move where her new husband’s job took her—and who was usually allowed to do so ‘so as not to jeopardise the new marital relationship’. Over the years a more typical move was by a mother taking up her own well paid job abroad, who could thus claim the financial benefits that would flow. Where the parents were never married it was unlikely that the ‘absent father’ had full parental rights so he could not object – but of course that changed from December 2003 when an unmarried father achieved equal rights on signing the child’s birth certificate.
For several years now the situation has been much more balanced and was often summarised by the case ofPayne, which posed the questions, still mother-centric:
- Is the mother’s application motivated by genuine concern for the welfare of the child, not by a desire to exclude the father?
- Is the father’s opposition motivated by genuine concern or some ulterior motive and what would be the detriment to him of having his child so far away weighed against the benefits for that child in relocation to, say, the maternal family and homeland? and;
- What would be the impact on the mother of a refusal of her reasonable proposal?
Many cases now arise, however, because one or other parent who married and had children here subsequently wants to ‘return home’ or move on to another rob abroad
Very recently the Court of Appeal has taken a new look at the issue –in a case known as re F and noted that whereas the leading case of Payne put the welfare of the child as the paramount consideration nowadays from the well-known welfare checklist greater emphasis is placed on the wishes and feelings of the child. Inherent in this approach is the current understanding that a child benefits from having a good relationship with both parents and that a father’s involvement should not be sidelined or underestimated.
Of course this chimes with the views of most fathers nowadays that they want to play a full part in their child’s life and that for this they want to co-parent and bring up the child, want – if separated from the mother – to see and interact with their offspring regularly or simply share their residence. There is no longer an automatic assumption that child stays with mother and many fathers have successfully applied for and got orders for shared or joint residence to underscore the equality of the parental relationship. Interestingly, this most recent case has made plain that having such an order is not even necessary to give pause to or halt an application by mother to relocate abroad.
The court will now look at the totality of the changes that would be brought about by the proposed move and how each impacts on the child— for benefit or disadvantage – in a holistic approach. So financial and health and educational provision, and cultural links and quality of relationship with the left behind parent are all very important, as also the breaking of close links with other siblings or stepsiblings. Thus removal is by no means automatic and these days there would have to be a social work report on all the issues, and for children aged from about five or six and over—their wishes and feelings would also be investigated and reported upon—albeit with the caveat that parents might be tempted to coach or bribe their offspring where there is such a lot at stake and children have to be told that ultimately it is not their decision to make.
The court will try to deal swiftly with such applications and want to put into effect a variety of safeguards if the application is ultimately granted, but the process is not quick or cheap – and huge problems can arise in planning a legitimate move if there is delay at any stage.
Senior Partner & Head of Family Department
Eileen has over 40 years of experience in Family Law matters and guides clients through all aspects which need to be sorted when a relationship is breaking down.
She was a former chair of the Law Society’s Family Law committee and has contributed to law reform. She set up Fisher Meredith 40 years ago and now heads a large team of dedicated lawyers with a wide range of skills.
Eileen will take on the wives of difficult husbands and those hiding assets or being threatening, the difficult wives of men striving to be fair whilst being treated as cash machines – and everyone in between.
Eileen can judge from experience when a case is suitable for mediation or collaborative law and when it is not. She pursues these processes carefully and at the pace the clients wish to go.
Her Family Law department is ranked in Chambers and Partners and Legal 500 while Eileen is individually ranked as Band 3.
Eileen has a reputation for being firm but fair and her clients refer their friends for years to come.
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Eileen originally read Natural Sciences at Cambridge University and then studied post graduate Russian and French. She lived in Mexico for a while and worked for many UN and other organisations in Europe and Africa as a translator/interpretor in Russian, French and Spanish.
Eileen often gives presentations on family law and has lectured, written articles and has starred in many radio programmes including Women’s Hour, MoneyBox and Points of Law.
She has two lovely daughters and can recommend late motherhood. In her spare time, Eileen can be found sailing, riding her horse in the wilds of Wiltshire, reading novels in various languages and walking.