More than ever families are moving across borders. Avneet Panesar examines what this means for separated parents with relocating children
The twin tends of a globalised workforce and the uptake of remote working since the pandemic means families – and increasingly the courts – are faced with difficult decisions about children moving permanently to another country. Among those looking to move will be separated parents with one parent perhaps looking to return to the country where they grew up, where their family and friends still live, or perhaps pursuing better job prospects and a higher quality of life.
In order to relocate to another country with a child, consent is needed from all parents with parental responsibility for the child. The first thing to consider is whether a parent has parental responsibility. The Children Act 1989 defines parental responsibility as ‘all rights, duties, powers, responsibilities and authority’ which by law a parent of a child has in relation to the child and his/her property. This includes having a right to decide how their child will grow up, where they will live, decisions in relation to their education, religious upbringing, and medical care.
A mother automatically acquires parental responsibility by virtue of giving birth to the child. A father can acquire parental responsibility by being married to the mother at the time of the child’s birth, by being named as the father on the birth certificate, by having a parental responsibility agreement or through an order of the court.
Relocating without consent of the other parent amounts to child abduction. The parent intending to move can reach an agreement with the left-behind parent, which can be recorded in a court order. Failing this, an application to court will need to be made.
The court’s paramount concern when considering such applications is what is in the best interests of the child. The court will consider what is known as the ‘welfare checklist’ set out in the Children Act 1989:
- The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
- The child’s physical, emotional, and educational needs
- The likely effect on the child of any change in their circumstances
- The child’s age, sex, background, and any characteristics which the court considers relevant
- Any harm the child has suffered or is at risk of suffering
- How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs
The court will carry out a holistic and non-linear comparative evaluation considering the facts of every case and other factors as below:
- The intention of the applicant parent: is the application genuine?
- The proposals put forward by the applicant parent: are they realistic?
- The effect upon the applicant parent if permission to relocate is refused and the effect on the left-behind parent if it is granted.
- The rights of the child to have direct contact with both parents on a regular basis. Is there a risk of this being lost and the child suffering harm?
- The issue of proportionality of the interference of relocation on the child and the left-behind parent’s right to a stable and secure family life.
This is not an exhaustive list. No two families are alike, and the court will consider the facts of every case individually.
About the author
Avneet Panesar is an Associate Solicitor at The International Family Law Group LLP, a specialist law firm based in Covent Garden specialising in international families. Avneet handles all aspects of family law arising from a relationship breakdown. She is a specialist in parental abduction and cross-border cases concerning children, regularly dealing with emergency cases in the High Court. Avneet handles issues of paternity, child relocation, allegations of child abuse and female genital mutilation (FGM). She also advises parents wanting to take specific or preventative steps in respect of their children.
Avneet also advises on all aspects of family disputes including financial issues following the end of a relationship and allegations of domestic abuse.
As a member of Resolution, Avneet aims where possible to achieve a practical, constructive and conciliatory approach to her cases. Avneet speaks fluent Punjabi, Hindi and Urdu.
The International Family Law Group LLP
© December 2022
About the International Family Law Group
is a specialist law firm based in Covent Garden, London. Their legal team includes specialist accredited English lawyers, mediators, collaborative lawyers, arbitrators, and Australian lawyers. They look after the interests of families and children, with a specific focus on international families. A key area of their work is recognition of foreign marriages and divorces and the financial consequences of relationship breakdown.
They are committed to the use of digital innovations for the benefit of clients and resolution on international family law cases. They have outstanding links with law firms and specialist family lawyers within Europe and worldwide. Their website is full of helpful information including a 24-hour abduction and emergency line at www.iflg.uk.com.