Moving abroad with a child following a separation

Children|International|November 7th 2019

Can you move abroad with a child without the other parent’s consent following a divorce or separation? 

Sebastian Burrows, our new Managing Partner at the Stowe Family Law Chelmsford office, joins us to look at a recent storyline in Holby City and the lessons it can teach us about relocating abroad with a child. 

It’s only Scotland

The BBC has this week developed a storyline in Holby City with the Consultant Jac Naylor (played by Rosie Marcel), facing an overwhelming dilemma. Her former partner, Jonny, wants to take their daughter to live with him in Scotland.

We are of course part of the United Kingdom and happily travel between the four Home Nations without a second thought. 

However, as far as the law is concerned England & Wales are very separate indeed from Scotland and Northern Ireland. In fact, legally, they might as well be France or Germany for the implications on family law issues. 

Jac Naylor and Jonny, have a young daughter, Emma. In recent episodes, Jonny’s new partner has announced their intention to move to Edinburgh to live and raise their new family. 

It soon becomes apparent that Jonny wants little Emma to live with them. Jac’s characteristically ferocious response is to draw very clear battle lines: “I’ll see you in court…”

The law regarding moving abroad with a child

The Welfare Checklist is a reference to section 1 of The Children Act 1989. It is the foundation upon which all legal decisions in respect of children are made. It is a tried and tested ethos that puts children at the core of all considerations when parents cannot reach an agreement. 

Scotland, despite being so familiar and close, is a foreign country legally. To take a child to Scotland without the other parent’s consent amounts to International Child Abduction. It is therefore essential that for a child to move to live in Scotland (or another country outside of the UK) either (a) both parents must agree, or (b) the courts must grant or deny permission for the move. Without either, the courts can be involved to order the return of the child.

The Holby City storyline sees the family-orientated Scottish father, in a stable new relationship, wanting to move to his home city and to care for his young family there. Until now, little Emma has shared her time between her parents but is excited by the prospect of the move. 

This week Jac ultimately made the painful decision to allow her daughter to move to Scotland with her father. This will be a decision that many parents will find heart-wrenching. But amidst the out-dated TV drama language of ‘access’ and ‘custody’ (which does little to promote compromise or agreement in the real world), the BBC scriptwriters have trodden a fine line to reach Jac’s decision. One that seems to be pragmatic and sensible for these fictional characters. 

Deciding on moving abroad with a child

Considering the removal of children from the jurisdiction, as it’s known legally, requires the courts to take into account a plethora of factors when deciding what is in the best interests of a child. Whatever the reasons for the move, one constant exists – that the proposition must be very carefully considered and that plans are in place to make the move realistic and positive. 

BBC1 has skipped a hurdle (as far as we know) in making Jac Naylor put Emma’s wishes and feelings before her pain and grief. The prospect of being separated from a child by an international border always causes enormous distress and children very often find themselves attempting to placate both parents, despite being ill-equipped to deal with such adult decisions. 

Whether parents wish for their child to live with them in a different country or to resist the suggestion of a move; careful, considered and realistic legal planning is essential. 

Get in touch

If you would like any advice on moving abroad with a child following a divorce or separation you can find further articles here or please do contact our Client Care Team to speak to one of our specialist children lawyers here. 

Seb represents clients in all aspects of family law and is well versed in handling complex and high-net-worth cases often with an international element. He is described in the Legal 500 as practical, realistic and personable’, ‘pragmatic and sensitive’ and ‘excellent, intelligent and thoughtful’.

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