Can I Emigrate With My Children?
This can be one of the most difficult decisions separated parents face. Separating itself almost always involves some change in your relationship with your children – quite likely they will no longer be living with you full-time.
But moving to a different country takes it to a whole other level. Despite social media, easy phone calls, Skype and relatively cheap air travel, you are probably going to see less of them, and they will be growing up in a country which may be unfamiliar to you. It will be hard to share that experience.
Sometimes the issue comes up because the parent with whom the children are living forms a relationship with someone from abroad, and wants join them in their country where they see the chance of a better life. It can feel very unfair to the parent who is left behind.
If both parents agree that their children should move permanently to another country, then of course they free to make that choice. But if they do not agree removing the children permanently (or even temporarily) would be abduction, which is a criminal offence with very serious consequences.
So if your ex does not agree to move you will need a court order permitting the move.
Your application will be under Children Act 1989, and the welfare principle applies – the welfare of the children will be first and paramount in the judge’s decision, which is expanded in the “welfare checklist” at section 1(3) of the Act.
For many years the leading case tilted the law firmly in favour of the parent seeking to emigrate, but a landmark case in 2018 pushed the balance back the other way. The court will look closely at the proposal to move, and evaluate the options for the children. Where one parent seeks to change a well-functioning status quo, they will have to make the running and show that change would be more in the interests of the children than no change.
The judge will want to take account of the wishes and feelings of the children themselves, and also of both parents. But your own overwhelming wish to move will not carry the day alone. Arguments relating to the devastation and impact of refusal of the relocating parent will now be treated very circumspectly.
The judge will want to know about all relevant factors, including practical issues such as housing in the new location, existing ties to family and friends, the quality of healthcare, and education, and the ease of entering the new education system and employment prospects and financial considerations. They will also look at language issues, the political situation stability and safety in the new country, and transport links back to the UK. It becomes a “holistic” or 360° evaluation.
Moving to another country is always a bit of a step into the dark – there will be some unknowns and perhaps that is part of what makes it exciting. But where children are involved you have to plan carefully, and you may need help from a lawyer who knows what they are doing.
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.
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