International Children's Law Frequently Asked Questions

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Can the children be moved away by a parent with shared custody?

If there is a Child Arrangements Order/Residence Order in force with respect to a child, no person can remove the child from the Court’s jurisdiction (England and Wales) without the consent of every person with parental responsibility, or without leave of the Court.

However, if there is a Child Arrangements Order/Residence Order in favour of one parent, this empowers them to remove the child from the country for no longer than a month, without the requirement to obtain consent (as long as it does not breach the other provisions contained within the Order). This enables parents to take their children on holiday.

The situation with shared residence is less clear, as the children live with both parents. Generally, if the Order says that the child resides with both parents then they will both be able to take the child out of England and Wales for up to one month (as long as it does not breach the other provisions contained in the Order).

In circumstances where one parent wishes to move with a child outside of England and Wales and no consent can be obtained from the other parent with parental responsibility then they would need to apply for Leave to Remove the child from the Country. Equally, the parent who would be left behind could apply for a Prohibited Steps Order.
Can my baby’s mother take my children back to her country?

There are various ways that you can prevent the removal of your child from the country.

If you suspect that there is a real risk that the child is going to be removed from the jurisdiction (England and Wales) and that the removal is going to occur in the near future, you can apply to the Court for an urgent Prohibited Steps Order. Such an order, if granted, would prevent the other parent from leaving the country with them without your prior consent.

However, it should be noted that the other parent could apply to the Court for a Specific Issue Order (if it is for a holiday) or Leave to Remove the child from the Country. There is a wealth of case law dealing with how such cases should be dealt with by the Court and you should seek legal advice as to the specifics. Generally, however, the paramount concern is the child’s welfare.

Aside from the legal options, there are also practical steps that you could take to prevent the child leaving the country. If you are already in possession of their passports, make sure that this remains the case and, to avoid any new passports being applied for or replaced without your knowledge, you should speak to the Passport Office to ensure you are notified if an application is made. It is also wise to consider requesting an All Ports Alert if a Prohibited Steps Order has been granted.
My ex refuses to pay child support & lives outside of the UK, what can I do?

To enable the CMS to both assess and collect maintenance, your ex must be within the jurisdiction of the Courts of England and Wales or must work for a country that is based in England.

If you have a child maintenance order in force currently in England there is a possibility that you could seek to enforce it in some countries.

The easiest remedy in this scenario would be for you to come to an arrangement with your ex directly. If you are unable to do this, you may be able to to make an application to the Courts of England & Wales for maintenance under Schedule 1 of the Children Act 1989, which has potential enforcement issues, or consider making an application to courts in the country where your ex lives.

If you do choose to make an application in a country outside of the UK, you must first seek professional advice from a lawyer in that country.
Can an Australian-born child move with her mother who is a British citizen to England to stay for good?

If the family is currently living in Australia, that country’s law will govern whether relocation is possible. Under English law, relocation out of the UK is only permitted if everyone with parental responsibility for the child/children has given their consent or with specific permission of the Court.

Ultimately, what persuades the Court is whether the move would be in the best interests of the child. The reason for the move would be considered alongside the effect on the parent who would be left behind.

Australian law may be similar to UK law. In order to be sure, however, you should seek the guidance of an Australian lawyer.