Love Don’t Live Here Anymore: Can I relocate to the EU with my children following a divorce?
Theresa May has suffered yet another crushing defeat in the House of Commons by 303 votes to 258 after seeking MPs’ backing for her approach to renegotiating her withdrawal agreement with the EU after the House of Commons emphatically rejected it last month. This latest fiasco paints a sorry picture for the United Kingdom. The Prime Minister has, it seems, made a charge for the cliff edge of a no-deal Brexit, and strapped the country on her back to come along for the ride.
And many EU citizens want to get off.
But what if you are divorced and have children with someone who wishes to stay in the UK? Can you relocate to another country? And if the other parent won’t let you, can you move without their permission?
What is the law regarding removing a child from the UK?
If you have a Child Arrangement Order (CAO) which regulates where and with whom your child should live, you cannot remove your child from the UK for more than a month without the written consent of every other person who has parental responsibility, or the court’s permission. This rule is governed by section 13 of the Children Act 1989.
If you have parental responsibility but are not named as a person with whom your child is to live with in a CAO then you cannot take your child to another country without permission or the court’s consent. If you do, the left-behind parent can make an application under the Hague Convention and certain provisions of Brussels II bis (an EU regulation which deals with conflict of law matters in family law between member states).
Therefore, to legally move to another EU member state with your child, you will need to get the other parent’s permission. If they refuse to grant it, the next step is to apply to the court. You will need legal advice and representation at this stage, so it is imperative you see a family law solicitor who is experienced in international relocation matters.
What factors will the court consider when considering a request for permission to take a child out of the UK?
When considering an application to remove a child from their country of habitual residence, the court will always put the welfare of the child first. This can be difficult for a parent to accept, especially if you wish to move for reasons of a new job offer, relationship, or simply to escape Brexit. However, to minimise frustration, understanding that the court will view the child’s welfare as the paramount consideration will help you build a pragmatic argument to put before the court.
For many years, the judgment in the case of Payne v Payne  EWCA Civ 166 was a leading authority on leave to remove applications. The judgment directed that the following principles should be applied when considering an application for relocation.
- The welfare of the child is paramount.
- The court must be satisfied that the reason to move is genuine and not simply an attempt to thwart the contact of the left behind parent.
- Consideration must be given to the effect of a refusal on the parent who wishes to relocate.
- The effect of the child losing contact with the left behind parent is very important.
- The opportunity for continuing contact between the child and the parent left behind may be very significant.
Later interpretations of Payne seemed to indicate that if a well thought out application was made and if the child’s welfare would not be adversely affected by the move, there was a presumption in favour of granting an application.
Many family law professionals were unhappy with the amount of weight given to the effect on the leaving parent of denying them the right to relocate. This led to several attempts to move away from the Payne decision. Research into the negative effect of relocation on a child also caused concern. For example, the 2009 paper Relocation: The reunite research, Dr Marilyn Freeman for the reunite research unit, July 2009 and The need for reality testing in relocation cases, Legal Studies Research Paper No. 10/119, Patrick Parkinson, Judy Cashmore & Judi Single) showed that many children “lost” the left-behind parent as a result of relocation.
“Parents are often placated with assurances that CAFCASS will be involved to ensure that contact arrangements work but, in reality, CAFCASS is unable to assist once the child leaves the jurisdiction.”
In addition, the research found:
“Several parents reported that indirect contact, which is often part of a contact order and is designed to supplement the infrequent physical visits between a parent and child, rarely happens and cannot be relied upon as a method of maintaining contact. Telephone conversations are difficult to organise at times which suit the residential parent and which fit into the child’s programme. When they do take place, they are strained and truncated as the child is aware that others are listening to the call, feels the pressure of divided loyalties, or just cannot be bothered to speak at that time. The internet is not a suitable method of communication for most young children who would require parental assistance which may not be forthcoming, and the same is true of webcams which regularly are included within contact orders”.
In 2010, the Washington Declaration on International Family Relocation was signed. Over 50 judges and experts made a joint declaration that there should be no presumption either way in international relocation cases and all such cases should be decided on welfare principles.
IN the UK, the case of MK v CK  EWCA Civ 793 ruled that permanent relocation applications are to be determined on welfare principles alone. All aspects of Payne were to be viewed as guidance only, except for the welfare principle. The effect on the relocating parent of denying an application was to be given no more weight than any other factor.
In (F (A Child) (International Relocation Cases)  EWCA Civ 882, the Court of Appeal held that an evaluation of the best interests of the child should be determined by the welfare checklist section 1(3) of the Children Act 1989.
Does the European Convention on Human Rights (ECHR) international relocation affect cases?
Permanent removal of a child to another jurisdiction can engage the rights under Article 8 of the ECHR which sets out the right to family and private life. If this is the case, the court must carefully evaluate the applicant’s plan and undertake a proportionality evaluation.
When deciding on an international relocation application, the only principle the case should be decided on is the welfare of the child. The court will go through a holistic welfare checklist, and each case will be decided on its own facts. Older children should be given the opportunity to voice their wishes to the court.
Relocation is one of the most difficult areas of family law because of the emotions involved. Regardless of the outcome, one parent will miss out, either on the chance to take advantage of opportunities in another country or regular, sustained contact with their child.
Brexit adds another complexity to this area of family law because no one fully knows the final legal status of EU citizens after Britain leaves the bloc. In Re L (Relocation: Second Appeal)  EWCA Civ 2121, Lord Justice Jackson stated that the task of deciding relocation cases is difficult enough without trying to predict what may happen after 29th March 2019.
Because each case will be decided on its own facts, it is crucial you work closely with a family law solicitor to build a strong case for relocation. This will provide you with the greatest chance of success.