Can I move abroad with my child after separation?: What separated parents need to know

Parents across England and Wales often ask whether they can move abroad with their child following a separation or divorce. Whether you are planning a move overseas for work, family support or a new relationship, it is important to understand your legal obligations before making any arrangements.

Family Law Solicitor Shetal Gudgeon regularly advise parents throughout Sheffield, Chesterfield, Dronfield, Mansfield and across England and Wales on child relocation and international family law matters, parental responsibility, child abduction and child arrangements disputes.

In this article, Shetal explains when you can and cannot take your child abroad following separation.

 

 

The law in England and Wales takes the view of both parents seriously and does not simply favour the parent with the stronger practical case, but its paramount consideration will be the child’s welfare. If you are considering relocating abroad with your child, or have just learned that your former partner is, there is no presumption either in favour of or against a proposed relocation.

 

Do I Need The Other Parent's Permission To Move Abroad With My Child?

Before permanently relocating a child overseas, a parent must establish whose consent is legally required. Depending on the circumstances, the written consent of other people with parental responsibility or the permission of the court may be required. Under section 1 of the Child Abduction Act 1984, consent may be required from the child's mother, the father if he has parental responsibility, and any guardian, special guardian, or person named in a child arrangements order as someone the child lives with. A father without parental responsibility is not on that statutory list. However, he may be able to apply to the court for both parental responsibility and an order preventing the proposed move. It is therefore sensible to obtain advice about his legal position before proceeding.

Where a child arrangements order is already in force specifying who the child lives with, section 13 of the Children Act 1989 adds a further requirement: consent must be given in writing by every person with parental responsibility, or the court's permission obtained. Even where no order exists, and writing is not strictly required, get the agreement in writing anyway. Recollections diverge, and a clear email trail is far better evidence than a conversation at the school gates.

 

Can I Take My Child Abroad On Holiday After Separation?

Taking a child abroad without permission is child abduction. You need consent from everyone entitled to give it, even for a short holiday. The UK Government has set out the basic position on taking a child abroad, and a signed consent letter with contact details and travel dates is worth carrying, as border officials may ask for evidence of permission.

If there is a court order in place, a parent named in a child arrangements order as the person the child lives with may take the child out of the UK for less than one month without anyone else's consent. It is often reported as a "28-day rule", which is not what the legislation says and could catch you out in a 31-day month.

This exception is narrower than it sounds. It applies only if you hold a "lives with" order and the trip does not breach any other provisions of that order. A proposed holiday may therefore require further agreement or an application to the court if it interferes with arrangements required by the Order. 

 

What Happens If I Move Abroad With My Child Without Permission?

A person connected with a child under 16 may commit a criminal offence by taking or sending the child out of the United Kingdom without the appropriate consent or permission of the court. The legislation contains limited exceptions and defences, but these should not be relied upon without specialist advice.The civil consequences are equally serious. If the destination country is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the left-behind parent can seek the child's return. The courts of the destination country will usually not consider who is the better parent. They will consider whether the child should be returned for the courts here to decide. You can check whether a country participates using the Hague Conference status tables.

 

Moving elsewhere in the UK is a different question

Both section 13 of the Children Act and the Child Abduction Act address removal from the United Kingdom. A move from Cardiff to Glasgow or to Belfast is therefore not caught by either provision, and no criminal offence is committed.

That does not make it a free decision. The other parent can apply for a prohibited steps order to prevent the move, and the family court applies the same welfare test as it would for a move abroad. The Court of Appeal has confirmed that there is no separate, more relaxed test for internal relocation. In practice, a move to the Highlands can disrupt contact more than a move to Amsterdam, and courts are alive to this.

 

Trying to reach agreement first

Unless a valid exemption applies, a prospective applicant will normally need to attend a Mediation Information and Assessment Meeting before making an application. A MIAM provides information about mediation and other forms of non-court dispute resolution. It does not require the parties to mediate or reach an agreement. Relocation is not the easiest subject for mediation, but it is not hopeless either. Many disputes settle on terms that no one would have reached at a first hearing, such as a delayed start date, extended holiday contact, or funded flights. You can find an accredited mediator through the Family Mediation Council.

 

How Do I Apply To Relocate Abroad With My Child?

If you are considering a court application to relocate with your child, obtaining advice from experienced Family Law Solicitors in South Yorkshire, Derbyshire and Nottinghamshire can help you understand the likely approach the court will take in your circumstances.

Which application you make depends on what is already in place. If a child arrangements order provides that the child lives with you, you apply under section 13 for the court's leave, usually seeking a variation of the existing order at the same time. If no such order exists, the application is for a specific issue order under section 8 of the Children Act 1989. Both are made on Form C100.

The court will usually direct safeguarding checks and Cafcass (or Cafcass Cymru in Wales) may be asked to prepare a welfare report before the final hearing. Relocation cases are often evidence-heavy. The timescale will depend on the issues, the evidence required and the court’s availability. Relocation should therefore be considered well in advance, and irreversible commitments should generally be avoided before the outcome is known.

 

How Does The Court Decide Child Relocation Cases?

The child's welfare is the court's paramount consideration, assessed against the checklist in section 1(3) of the Children Act 1989. This includes the child's own wishes and feelings, considered in light of their age and understanding.

The court compares both parents' proposals side by side, weighs the advantages and disadvantages of each, and then cross-checks that the outcome is proportionate interference with the family life of everyone affected. Two consequences follow. Refusal is a real possibility even where the applicant's plans are excellent. The effect of relocation on the child's relationship with the other parent may weigh particularly heavily in the welfare assessment.

 

What Evidence Do I Need To Relocate Abroad With My Child?

The court will expect evidence of:

Just as important, and often less well prepared, is the proposal for the other parent's ongoing relationship with the child. Set out the number and duration of visits each year, who will pay for flights, how indirect contact will be managed across time zones, and what happens if circumstances change. A plan that treats the other parent as an afterthought is often read as evidence of the applicant's attitude, not merely as a gap in the paperwork. It is important to seek the advice of a specialist Family Law Solicitor in order to present a well-considered plan.

 

Keeping the relationship going once a child has moved

An order made here is not automatically enforceable abroad. Since the end of the Brexit transition period, the 1996 Hague Convention provides the principal framework for recognition and enforcement of relevant orders between the UK and EU member states in cases falling outside the transitional arrangements for the former EU regime. Orders made in one contracting state are generally recognised by operation of law in another, although formal steps may be required before an order can be enforced and recognition can be refused on specified grounds.

For that reason, courts may make permission conditional on practical safeguards, such as a mirror order in the destination country to ensure the contact arrangements are enforceable there, undertakings from the relocating parent, and, in some cases, financial security. Where the destination is not a party to the relevant international convention, or where recognition and enforcement are otherwise uncertain, specialist advice will be needed in both jurisdictions. These questions should be addressed well before an application is issued.

 

How Can I Stop My Ex-Partner Moving Abroad With Our Child?

If you are concerned that your child may be taken abroad without your consent, act quickly rather than waiting to see what happens.

A Family Law Solicitor will explain your options to you. These may include a prohibited steps order which can prevent removal of a child from the jurisdiction. In genuine emergencies, an urgent application may be made without first giving notice to the other parent. The court can also make orders concerning passports. Where there is a real and imminent risk of wrongful removal, the police may be able to place protective steps including consideration of  a port alert, which circulates the child's details to ports and airports for 28 days. Urgent advice should be obtained from a Family Law specialist immediately.

Once a child has settled in a new country, the practical and legal position shifts, and returning them becomes far more difficult than preventing their departure would have been.

 

Take advice from a Family Law Solicitor before you commit

Whether you are planning a move abroad with your child or are concerned that your former partner is considering relocation, obtaining legal advice as early as possible can make a significant difference.

 

FAQs

Can I move abroad with my child without the other parent's permission?

Usually not. If another person has parental responsibility for the child, you will need their consent before relocating abroad. If consent cannot be obtained, you will need permission from the Family Court before the child can move overseas. This applies whether the proposed move is permanent or for an extended period.

How does the court decide if a child can move abroad?

The court's primary consideration is the child's welfare and best interests. It will consider factors including the child's wishes and feelings (depending on age and understanding), the reasons for the proposed move, the arrangements for housing, education and financial support abroad, and the impact on the child's relationship with the other parent.

Can I stop my ex-partner moving abroad with our child?

Potentially, yes. If you believe your child may be taken abroad without your agreement, you can seek urgent legal advice and may be able to apply to the Family Court for a Prohibited Steps Order. In urgent cases, the court can consider emergency applications and make orders relating to the child's passport and travel arrangements.

Do I need legal advice before applying to relocate with my child?

It is highly advisable. Child relocation cases are complex and early advice from an experienced Family Law Solicitor can help you understand your options, the likely approach from the court and prepare the strongest possible case.