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Child Relocation Orders after Separation or Divorce

Child Relocation Orders after Separation or Divorce

When you decide to separate or divorce it can feel liberating and the start of a new chapter in your life. That new beginning may involve a move overseas with your children or a relocation to the UK as part of your post-divorce journey. However, it can come as a surprise to learn from family solicitors that whilst a parent based in the UK can move abroad, their dependent children can only accompany them if the other parent has given permission or the English Court has made a relocation order.

Online and London Family Law Solicitors and Children Lawyers

If you need advice on children law or representation in child relocation proceedings call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

Taking your children overseas or moving to the UK

If your children are habitually resident in the UK, and you take them overseas to live without parental agreement or Court order, you may face accusations of child abduction and an order for the summary return of your children to the UK. Likewise, if you come to the UK with your children, the other parent may be able apply to the English Court for a summary return order for the children to be taken back to their home country if the home country is a signatory of the Hague Convention on child abduction.

The Hague Convention

The Hague Convention is an agreement entered into by a number of different countries to provide a uniform and consistent approach to parental child abduction disputes. The UK is a signatory to the convention.

The 1980 Hague Convention provides that a parent whose children have been removed from their home country without the other parent’s agreement or Court order can apply to the Court in the country where the children have been taken to, for a summary return order. The Court can only refuse a summary return order where:

  • There is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation or
  • The child objects to being returned to their home country and the child has attained an age and degree of maturity at which it is appropriate to take account of the child’s views.

Speak to a children law solicitor  

If you are planning to move to a new country with your children speak to a family solicitor first to check if you need permission and a relocation order. It is best to do this rather than move, then face allegations of child abduction, and the other parent asking the Court for a summary return order to return your children to their home country.

If a summary return order is made then it does not mean that you have to return, but your children do. You can choose to return with your children and engage in court proceedings for a relocation order so you can, with the right permissions in place, then move overseas with your children.

The bottom line is that it is best to understand children law and relocation law before you either come to the UK with your children after your separation or divorce or before you move overseas with your family. That way you can make sure that you have the permission and relocation orders you need and you don’t risk additional disruption for the children or experience the stress and worry of Hague Convention proceedings.

In recent months, the child abduction and children lawyers at OTS Solicitors have seen a steep rise in relocation order enquiries. That is partially because international travel has been widely restricted over the last couple of years due to COVID-19 and now, with the world opening up again, parents are keen to move without delay.

Lessons from R (A child) [2022] EWCA Civ 188

The recent February 2022 English Court of Appeal case of R (A child) [2022] EWCA Civ 188 involved a family from Ukraine. It helps show how complicated moving overseas, or to the UK, can be if you don’t get the right permissions before your move.

The background to the case is rather complex. The mother brought the child from the Ukraine to the UK. The father got a summary return order under the Hague Convention. The mother opposed the application but the Court ruled there was no defence to the summary return application under the Hague Convention defences and the order therefore required the child's return to Ukraine.

The mother returned to Ukraine but there was a second return to the UK and another summary return application. After the order was made, the mother applied for asylum in the UK on her behalf and on behalf of the child. The Home Office granted the asylum claims.

If a country is a signatory to the Hague Convention on child abduction, it is easier for a parent to get an order for their child to be returned to their home country without the country where the child has been taken to being able to consider whether it is best for a child to stay or leave, other than in very limited circumstances. If the Hague Convention is engaged, and there is no statutory defence, a Court should make a summary return order for the child.

The English Court refused to enforce summary return of the child to the Ukraine. The High Court said the father’s Hague Convention return application should end because the child had been granted UK asylum by the Home Office. The father appealed to the Court of Appeal. The Court of Appeal granted the appeal and in essence said asylum doesn’t automatically stop a summary return application. The Court of Appeal decision means that there will be further Court proceedings in the UK to determine the return application.

The lessons from the case are that even a successful UK immigration application won't necessarily stop Hague Convention proceedings and that child abduction and children law proceedings and immigration matters can get very complicated and messy if parents do not get the legal advice and the parental permission or Court order they need before they take their children to a new country after their separation or divorce.

Online and London Family Law Solicitors and Children Lawyers

For children law and family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

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