Moving children overseas

If your former partner is thinking of moving overseas, perhaps to return to their family or because of a career move, what does this mean for you if you have children?  Parenting can be difficult enough, without hundreds of miles between you and your offspring.

They cannot relocate to another country without your consent and if you do not agree, they would need to apply to the court for permission to do so.  If this looks likely, then you should contact us for legal advice as soon as possible.

A fundamental principal in any case involving children is that the welfare of the child is always paramount.

Until recently, cases where a parent plans to leave the country with children have followed the principles of a case known as Payne v Payne.  This has often been criticised for being unduly favourable to the parent seeking to leave the country when they are the primary carer, usually the mother.

Earlier this year, the balance changed following the case of "Re K" where a couple shared the care of the children.

In this case, the decision was in favour of the father who actively shared the care of the children.  What constitutes 'shared care' is not easily defined as each family will have very different arrangements depending on a wide range of factors such as working arrangements and involvement in extra-curricular activities.

It is worth noting that the court emphasised that 'shared residence' is not sufficient to establish a shared care arrangement. In order to determine whether a couple actively share care of the children, the court will look at the actual practical arrangements in place between two equally committed parents.

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For further advice on family and matrimonial issues, please contact a member of our family team.

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Published:

24 November 2011