When parents separate, there are often issues that need to be settled regarding the children’s residence, contact and related financial matters.
International Children Issues
If you and your child reside in England and Wales but would like to return to your home country to live (or any other country for that matter) then you need the agreement of any person who also has parental responsibility for your child. Remember, it is a criminal offence to take a child out of the jurisdiction without the agreement of everyone who has parental responsibility for the child, or the court’s permission (Section 1 Child Abduction Act 1984).
So, who has ‘parental responsibility’ for a child? A mother always has parental responsibility for her child. A father also has parental responsibility for a child where:
- he is married to the child’s mother when the child is born or
- he later marries the child’s mother or
- his child was born after 1 December 2003 and he is named on the birth certificate when the child’s birth is registered
- he has entered into a valid parental responsibility agreement with the mother
The Children Act 1989 governs disputes about children. The Act states that the child’s welfare is the paramount consideration when the court considers any question concerning his or her upbringing, and requires the court to have regard to the Welfare Checklist. This is as follows:
- The child’s wishes and feelings, considered in the light of his/her age and understanding
- Their physical, emotional and educational needs
- Their age, sex, background and any characteristics which the court considers relevant
- The likely effect of any change in the child’s circumstances
- Any harm which the child has suffered or is at risk of suffering
- How capable each parent is of meeting the child’s needs
In the first place, the best approach is to try to negotiate an arrangement to relocate abroad, explaining to your former partner or spouse what your plans are, including of course how the children are to be accommodated, educated and how they will spend time with the other parent (and wider family members). This process may be assisted by a referral for mediation, which we can help with if necessary.
If no agreement can be reached then you may need to make an application to the Court for permission to remove your child from the jurisdiction of England and Wales. Your evidence will need to be prepared thoroughly, setting out in detail your reasons for wanting to relocate abroad, and the practical arrangements that you are proposing for the future care of the children. Thorough and well- reasoned applications are much more likely to succeed than those that are speculative or poorly prepared. The assistance of an experienced solicitor in drafting these documents can be valuable of course.
If the court is called upon to make a decision it will consider a series of legal authorities, including Payne v Payne  EWCA Civ 166;  1 FLR 1052, which proposed a series of questions for the court to consider when determining these types of application, (but which has since been criticised as being too formulaic), and more recently K v K (Relocation) (Shared Care Arrangement)  EWCA Civ 793;  2 FLR 880, a decision which was affirmed in Re F (Relocation)  EWCA Civ 1364. These later authorities have confirmed that the guidance in Payne v Payne remains valid, but have emphasised a more flexible approach, with the court being encouraged to carefully assess the likely impact of the proposed change on the child from all angles before making a decision.
A is a Spanish national residing in England. The father of her two children B is a French national with indefinite leave to remain in England. A wishes to return to Spain following the breakdown of the parties’ relationship, however, B does not allow her to take the children.
A will need to start court proceedings for permission to remove her two children from England and Wales. She is not allowed to leave England and Wales with her children unless she has either the permission of the Court or of B (as he also has parental responsibility for their two children). The court will either grant the application, perhaps specifying the timescale for relocation, and arrangements for the children to spend time with the other parent in the UK (these can include phone calls, skype or facetime as well as direct contact during school holidays say). It may also decide who is to keep the children’s passports. If the court refuses the application it may nevertheless go on to make orders permitting the children to travel abroad during school holidays, if for example there are other family members living outside the jurisdiction.
Other Children Issues
If a marriage or a relationship breaks down there may be disagreements as to where your child should live, how much time a child should spend with the other parent, where the children should go to school or other matters. Our solicitors have extensive experience of resolving these type of issues. We will agree a strategy with you and seek to reach a negotiated settlement with the other parent as swiftly as possible. If necessary we will issue Court proceedings to protect the interests of you and your children.
We understand that children issues or other family problems can be stressful and you can be confident that our team of experienced practitioners will be available to guide you through this difficult process.