An increasingly common problem arises when one parent unilaterally takes the children out of England and Wales, or retains the children here for longer than was agreed.

The removal of a child from the United Kingdom without both parties’ consent (unless it is for a holiday of under 28 days and the parent concerned has a residence or child arrangements order in his or her favour) is a criminal offence. In addition, there are civil remedies available to obtain the children’s return from a jurisdiction outside the United Kingdom, or to obtain the delivery up of children who have been abducted to the United Kingdom.

Problems can arise on divorce or separation when one parent wishes to move to another jurisdiction with the children. If the other parent does not agree, the parent who wishes to move must apply to the court for permission. Removal of children from the jurisdiction in which they are habitually resident without the other parent’s consent, or an order of the court, is classified as child abduction, which is a criminal offence (see International Child Abduction for more information). An application can be for a temporary period to cover, say, a year’s contract abroad, or for a permanent relocation.

At Hughes Fowler Carruthers, we understand that these can be some of the most hard-fought and distressing of cases. The parent who wishes to move will feel that he or she can make the best life for their children abroad, often in the country of that parent’s birth. The other parent will feel equally as strongly that the children’s relationship with him or her will be deeply affected if they are no longer able to have that parent’s involvement in their day-to-day lives including during the school term.

The key consideration for the English court when deciding such applications is the best interests of the children. The court will look at the motivations of the parent who wishes to move, the plans for housing, schooling and, importantly, proposals for contact with the other parent.

An Independent Social Worker or a CAFCASS officer will be appointed to interview the parents and the children (if they are old enough) and to provide a report recommending whether the application should be allowed and what arrangements should be made for the children to see the other parent.  The judge at the final hearing is likely to give great weight to that report. See Disputes over Children for more on CAFCASS.