Ep. 26 - International child relocation

Jen: Today, we're going to have an international focus to the podcast and talk about what happens if one parent wants to move from England with their child to live in another country. We're very lucky to be joined by our colleague Annie Wogel, an associate in our London team. Annie advises on all aspects of family law with a particular interest in high value and international cases. Welcome, Annie.

Annie: Hi, Jen. Thanks for having me.

Tim: So, let's start, as we always do, with a myth. Today's myth is my child's other parent can't tell me where I can or can't live. That's up to me. Annie, what are your thoughts on that?

Annie: Well, unfortunately, it's not quite as straightforward as that myth makes it seem. It's right that an adult does have some level of freedom about where they live, but when they're thinking about taking a child to live abroad outside of England and Wales, then there are some limits on the freedom that they have.

And so, they will need the permission of the other parent. Or if the other parent doesn't agree, then they will have to apply to court and get the court's permission to the relocation. So, it's quite a complex and often emotional topic, and there are some legal and practical challenges that will have to be navigated along the way.

Jen: Yeah, I agree with you there, Annie. Certainly, in the cases that I've dealt with, there's lots of both legal and practical challenges, I suppose. Taking it back to the beginning, what are the situations you most regularly see where there's a parent who wants to move abroad with their children?

Annie: Well, I think it's quite common for parents who have recently gone through a separation to be thinking about a move abroad, because they're in a period of change in their lives and thinking about fresh start. And within that category, there's a few different reasons why a parent might be thinking about moving abroad.

So, for example, if they have family who live somewhere outside of England and Wales, they might want to move back to be near their family and have that support, especially in the aftermath of a breakup. If they've recently separated from the other parent, they might be reviewing their financial situation, thinking about applying for a new job, which could also take them abroad.

And then there's also the situation, which happens quite often, where a parent enters a new relationship and their new partner might be from a different country or have family abroad. And so that might be a reason they're looking at moving away. 

Tim: And so, you explained at the beginning that parents can leave with children, either with the permission of the other parent or with the permission of the court. So, before we move on to the court route, just when we're thinking about parents trying to agree, have you got any thoughts or suggestions as to how they should approach that at the outset?

Annie: So, I guess there's two perspectives from which to look at that issue from. There's the perspective of the parent who's looking to move abroad, and then there's the parent who's been left behind in England and Wales.

If you're the parent who's wanting to relocate, then it's important to think things through and be sure it's the best thing for your family. And in doing that, it's important to look at the practicalities of what's being proposed.

So, things like how the child is going to stay in contact with the parent who's staying in England and Wales, how often they'll see each other, details like where they will live and what school they'll attend. 
And the other thing to think about is how that discussion will take place with the other parent. So, one option that can be quite helpful is mediation, where both parents have the benefit of a third party to facilitate that conversation and see whether there's any scope for an agreement to be reached.

Then looking at things from the perspective of the parent who's staying in England and Wales, I would suggest it's important to think about the context in which the other parent has come to you to discuss a potential move. If you think that there's a risk they may travel abroad anyway without your agreement, it's important to take legal advice as earlier stage as possible, because there might be some steps that need to be taken urgently to prevent that risk.

On the other hand, if there's a good relationship between both parents and some trust and understanding, then it's important to think through and listen to what they have to say and consider their proposals in detail.

Jen: I think that point about communication there, Annie, is key, and it's not always easy depending on when these conversations are happening. You know, if it's quite soon after the relationship has broken down, it might all feel very raw and quite difficult.

But actually, I've acted for parents where these sorts of issues have arisen several years after separation, and actually there's a level of respect and understanding between them that that make it easier to discuss it. I don't know whether that makes it easier for the parent who's going to be staying behind in England to agree, but at least there can be those conversations.

Annie: Yeah, definitely.

Tim: And I think the other point around mediation, is worth just flagging, because sometimes I think people think, well, how can we mediate? It's a binary issue. It's yes or no. But actually, I've mediated a number of these types of cases where it gives the parents an opportunity to, as Annie's explained, have the sort of detailed conversation about what this will look like, schools and travel arrangements, whether the person's going to live.

Sometimes there's then a discussion about might they go as well? And the key point about putting yourself in the other person's shoes. So, if you're the person moving abroad, then actually thinking, right, well, if I was the person that was going to be left in a different country to my child, what would I want to be doing? What would I want the logistics to look like? How, as I say, the school holidays or flights or travel? How is that going to work?

And set out as much information as you can as early as possible, which I think isn't always intuitive option. Sometimes people think, well, I don't want to give my case away. But actually, I think in these types of issues, it's the opposite. You want to explain to the fullest as early as possible what this will look like and why it's in the benefit of the child, ultimately. And the mediation is a great place to do that.

Jen: And they should all be points that the parent wanting to relocate has already thought through in the first instance. So, it's sort of information that they would have, you know, in their minds. You know, I think there's a lot of considerations in terms of practicalities, what healthcare is going to look like in the other country, schooling options and things.

So, if you've already done that research and thought about what your future arrangement would look like, then sharing those has got to be the first step, really.

Tim: So, before we talk about the process or the procedure of the courts. Annie can just start by giving us an idea of what the court would look at if someone brought an application to remove a child from the country.

Annie: Yes. So as with all court proceedings, where there's a disagreement between parents about what the arrangement should be with a child, the main thing the court will be looking at is what is in that child's best interest. And in looking at that, the court will look at what's called the welfare checklist. And I understand Jen and Tim, we've got another podcast on that.

So, the court will look at how the move will impact factors such as the child's physical wellbeing, their emotional wellbeing, what their educational needs are and how those will be met if a move takes place. And in relocation cases in particular, there's quite a few specific factors that the court tends to focus on.

One of those is the motivation of the parent who's proposing to move out of England and Wales. So they will want to know whether that's a move that's really motivated by a belief that then the child's best interest to move abroad or on the other hand, unfortunately, some cases do arise where a move is proposed because it's a malicious decision taken to try and exclude the other parent from the child's life and make it harder to be involved because they're not physically in the same country as the child.

In assessing the motivation of the parent, the court will also look at how the relocation will affect the child's relationship with the parent who will be staying in England and Wales. So, it's very important to think in some level of detail about what the contact arrangements will be between the child and the parent who's staying in England and Wales. So that can be things like how often they'll visit in person, whether there'll be international travel. Quite often that has to happen in the school holidays, whether they'll speak with each other on FaceTime or over the phone, how they'll stay in contact during term time.

And then also there's not just the two parents who are involved, but if there's wider family members who are staying in England and Wales, the court will often look at what arrangements will be made for the child to spend time with their extended family and stay in touch with them. So, it's really important to think about that in detail as early as possible.

Then, Jen, as you've mentioned, the practical arrangements aren't just limited to that, but there's also lots of other issues to think about, such as where will the family live once they've moved? Where will the child go to school? How will the parent who's moving be able to look after the family financially? What job will they do once they've moved abroad? So, all those factors will be looked at holistically in order to assess whether the move is in the child's best interest.

Jen: There's clearly a lot of factors at play for the court and when if it has to make these sorts of decisions. And from my experience of dealing with these sorts of cases, that can often mean that parents are having when they go into the court process, they're having to start that by setting out a certain level of detail so that the court can understand where things are going. Do you want to sort of talk us through the court process in a bit more detail?

Annie: Sure. So, the court process is the same process that's followed when there's any application for an order about the care arrangements for a child and or an order about what time a child is spending with each parent. And we've already discussed mediation. And one of the first things the court will want the parent who's considering a court application to do is to attend what's called a mediation information and assessment meeting, which is essentially a meeting to provide that parent with an overview of the mediation process so they can think about whether that's a suitable alternative to court. And quite often it is. And that's a really helpful option available to help facilitate the conversation about a potential move.

Then if that's not successful, then a court application is needed. As we've already touched on, in these sorts of cases, it's quite helpful to go into it having properly considered what the child's life will look like if the move takes place, because the court will often ask both parents to produce detailed witness statements setting out their case in detail. And that will mean setting out in writing things such as where the child might attend school, where they will live, all those sorts of things.

In my experience in these relocation cases, it's quite often for CAFCASS to become involved. CAFCASS is the organisation that represents the interests of a child in court proceedings about children, and it is not uncommon for them to be asked to produce a report. And as part of the process of preparing that report, they will speak to both parents. Often, they might speak to the child as well, and then they will set out their recommendations for the court about whether the move should go ahead and whether it's in the child's best interests.

The court will then try and use that report to encourage the parties to agree things between themselves. And hopefully, having had that recommendation, it's a bit easier for parents to negotiate, and they've had the input of a third party as well to help guide those negotiations. 
But if that's not possible, then the court will list a final hearing, and that's where the court will make a final decision about whether the move should go ahead.

Even after that's happened, that isn't necessarily the end of the process, though. I've had a number of cases where the parties then want to enter into what's called a mirror order abroad, which essentially is a way of ensuring that the order that's been made in England about what the contact arrangements will be after the move, are reflected in the foreign jurisdiction and can be enforced there. 

Tim: Brilliant. Thank you. Annie. That's a very helpful summary of what the process is going to look like. And I suppose from a time point of view; how long would you say that that would take from start to finish?

Annie: Well, it can vary significantly depending on the workloads of the court, but it's not unusual for it to take upwards of six months, potentially up to a year for court proceedings to run right from the date the application is made, all the way to a final decision being made.

But even where a court application is made, as I've said, that doesn't mean that the parties can't reach an agreement along the way. And actually, the Cafcass report and the judge who's involved in the case will all be trying to encourage the parties to agree things between themselves. 

Tim: And I think that gives people an idea of how long it could take, and I think it plays into... When you spoke earlier about the different reasons that some people move, if it's a planned move, I suppose it's something you've got the opportunity to speak about earlier, then I think we would all encourage you to people to do that and to start talking about it as early as possible.

Clearly, if it is a job offer, then it comes with a different timescale, and then you sort of have to make that clear and hope the court will deal with it promptly. But I think where it's a planned move, we would suggest that people start talking about it as early as possible so that they've got time to go through these steps and actually give each step a genuine attempt. So, a genuine attempt to talk to each other about it directly and mediate, try and reach an agreement. And then if you can't, you've got time to go to the court process rather than being forced to go into the court process because you've decided you need to move in three months’ time or six months’ time.

Annie: Yeah, exactly. And also, one point to bear in mind is when the school year starts, because it's obviously much easier for any child to move if that's been planned. For example, they're due to start at secondary school anyway. If a move abroad can be timed so that it ties in with that, and they're not moving school’s midway through the year or midway through school. It's then a lot easier to convince the court that that move will be less disruptive to the child than if actually the timing isn't quite as helpful as it could be.

Jen: And that then in turn comes back to the point about doing the research, because obviously different countries have different academic years, and it's not always going to be the case that your child will move up to secondary school in the September that they are going to turn twelve. So again, an understanding of how the education system works in the country that you're looking at can be important for them. This sort of back timing exercise to make the transition.

Annie: Yeah, exactly. And if you then factor into that the whole process of school applications which, you know, often have to be done six months to a year in advance of the child actually starting school. It's not it's not easy to do these cases if what's being looked at is a fairly short-term move. In reality, it's something that needs to be considered really carefully and with a good amount of lead time before the moves actually planned to take place.

Jen: Great. Thank you very much. And I suppose, as we often do at the end of these episodes, if you could distil everything that we've spoken about today into sort of one key piece of advice for a parent who's thinking about moving overseas with their child, what would that be?

Annie: Well, I think as we've said throughout this episode, the main point in these relocation cases is just to plan things in detail. Looking at things from all angles: education, contact arrangements, living arrangements. Come up with a comprehensive plan that looks at what the child's life will look like in the new country and then communicate that to the other parent as soon as possible.

And that gives the parent involved the best chance possible of trying to agree things and avoid the need for court proceedings. If it's not possible to reach an agreement, then my advice is to seek legal advice. Get some input from a lawyer with expertise in this area so you can understand what your rights and obligations are. And if you are then considering an application to court, you'll have an understanding of what that will involve.

Tim: Brilliant. Well, thank you very much for joining us, Annie. That's been a really insightful and helpful summary of a complicated process.