Relocating or travelling with your child: legal considerations

This article was authored by Erin Lyon and Lucy Fisher during work experience with Moore Barlow. 

There are many reasons why a parent may make the decision to relocate with their child, both within the UK and internationally, for example, better schooling, closer family connections or a better standard of living.

It is therefore important to know and understand what you and your child’s legal rights are when considering a relocation. It is also important to know the parameters with which you can take your child abroad for holidays or otherwise.

I want to take my child abroad for a holiday, can I?

Whilst holidays are an exciting opportunity in any child’s life and development, it is important that all parties remain informed and provide consent where necessary. Whether you require consent for a holiday depends on the circumstances of your case.

If you have a child arrangements order in place already it is necessary to double check this before planning a holiday. If you have a child arrangements order, you cannot remove your child from the jurisdiction without the written consent of everyone with parental responsibility (see below) or permission from the court. The exception to this is if your child arrangements order names you as the party with whom the child is living – in that case you can take your child abroad for less than one month without the written consent of the other parent. The other parent will still require consent before travelling, unless there is a shared “lives with” order confirming your child lives with both of you.

If there is no child arrangements order it is important to note that you cannot take your child abroad without the consent of every person who has parental responsibility.

Either way, it is best practice for separated co-parents to keep each other informed as to the whereabouts of their child and details of any trips planned including travel arrangements, accommodation and emergency contact details for trips both within the UK and abroad.

What is parental responsibility?

Parental responsibility is a legal concept that defines the rights and responsibilities a parent has in relation to their child. A mother is granted parental responsibility automatically at the birth of their child. A father is granted parental responsibility if the parties are married at the time of the child’s birth or if he is named on the birth certificate. Fathers can also acquire parental responsibility by order or agreement. Same-sex partners will both have parental responsibility if they were civil partners or married at the time of fertility treatment, or if they obtain parental responsibility by order or agreement.

Therefore, those that have parental responsibility must be kept informed on various matters but specifically, provide consent for holidays abroad where required, as well as any decisions to internationally relocate.

One of the parties does not consent, can I still take my child abroad anyway?

If you require consent but are not given it and take your child abroad anyway, this could be seen as abduction and is a criminal offence. If you cannot reach an agreement in relation to holidays, it would be an appropriate time to consider discussions via solicitors or mediation with the other parent prior to the holiday to see if an arrangement can be fostered. If negotiations or mediation is not appropriate or breaks down, the likely next option would be to request the court’s consent to go on holiday with your child.

What do I need to do if I want to permanently relocate with my child?

If you decide that relocation is the best option for you and your child, it is important to try and reach an agreement if possible, whether via direct discussions, solicitor negotiations or mediation.

Mediation is where you and the other parent could discuss the possibility of relocation with the presence of a neutral third party to negotiate the terms of the relocation. It could foster greater communication between the parents and thus increase co-parenting strategies which would be necessary for a relocation to work successfully.

However, if negotiations or mediation was not appropriate or did not work then the next step would be to apply to the court for them to make an independent decision as to your relocation application.

What will the court consider in my relocation application?

The court needs to weigh up the benefits of relocation versus the potential impact that relocation would have on the left-behind parent. The court will consider all relevant factors of the case but the welfare of the child and their best interests is the court’s primary consideration.

The court will also need to consider whether the application is well-thought out and realistic. Therefore the parent that is seeking the relocation would need to demonstrate to the court what the child’s life would look like in this new location and how that would positively improve the child’s welfare/needs. For example:

• Where the child would be living and details about the local area.
• How the other party’s time will be promoted and accommodation upon relocation, and what those arrangements.
• Where they would attend school and what extracurricular activities might the child have access to.
• What the local support network will be, for example close family and friends.
• What employment opportunities would be available for the relocating parent and how the finances will be managed.

The above factors are generally dealt with in detailed witness statements, and the party who opposing relocation is likely to also make a statement as to why they do not consent and why relocation is not in the child’s best interest.  It is therefore important to obtain specialist legal advice on the preparation of such key documents and case management. The Moore Barlow family team specialises in international relocation cases.