A Guide to Relocation abroad with your Children after Divorce

For the vast majority of divorcing couples, the most difficult aspect to deal with is the question of the arrangements for the children of the marriage. There is rarely an easy answer. 

Since the enactment of the Divorce, Dissolution and Separation Act 2020 the latest reports from the National Statistics of the Family Court state that between April and June 2022, there were record numbers of divorce applications. 33,234 applications represented an increase of 22%, the highest number of applications for a decade. Sole applicants made up 78% of the applications and 22% were joint applications, a substantial number of which will have children to consider, although not directly linked to the divorce proceedings itself. 

For divorcing parents who are nationals of different countries the situation can be far more complicated, particularly if one parent wishes to return to their home country. Many of the children involved often hold dual nationality and at least two passports. At the present time, a decision to move back to a country with a more affordable way of life is most likely driven by, not only the current economic crisis in the United Kingdom but the fact that the economics of the family may have radically changed as well. For many, the decision may be based on a desire to return to a familiar culture or a support network that they may not have in the UK.

The courts take the view that the interests and well-being of the children are paramount when considering an application for relocation. Any parent wishing to relocate with their children to a country leaving the other parent behind must have a compelling reason for doing so. The courts will only grant permission, in the absence of agreement between the parents, after the reasons and circumstances have been thoroughly investigated in accordance with section 13 (1) of the Children Act 1989. The court of England & Wales will have the power to consider an application relating to a child if they are habitually resident in England & Wales.

Daniel Theron, a Partner, stated “if you wish to relocate abroad with your children after divorce, or in any event, and if permission is not forthcoming from your ex-spouse, you can ask the court for a court order granting permission to do so. The court must act consider the children’s best interest and is guided by various sections of The Children Act (1989)” Daniel further commented “whilst the welfare checklist outlined in section 1 (3) of the Act does not necessarily have to be acted on by the court it does encompass a number of relevant factors that should be considered. The children’s well-being takes precedence over the parent’s desire to move abroad. Above all else, you should take legal advice from the onset from a cross-border law firm with experienced family lawyers as this is not a course of action that is always easy to manage.”

Giambrone & Partners family lawyers are highly experienced in dealing with issues related to the relocation of children abroad following divorce, as well as assisting with parental child abduction matters, both in relation to prevention and to compelling the return of children abducted by their own parents.

Attempting to reach a negotiated agreement between you and your former spouse is by far the best option, our expert family lawyers can guide you through the process and will stay by your side. Legal advice from the beginning can shape your initial approach and will be vital to enable our family lawyers to be able to develop a successful strategy.

If no agreement can be reached between you and your former spouse, once the relocation application has been made, the advice of Children and Family Court Advisory and Support Service CAFCASS will be sought, who will undertake various checks, considering such things as:

• Your child’s day-to-day life. What is it like at the moment? 
• What benefits do they get from the current arrangement?
• If the children moved abroad would the current benefits be replicated?
• How would their needs be met by moving abroad?
• Are there any detriments that moving abroad would bring about?
• Will the relationship between the child and the left behind parent be eroded or diminished?
• What benefits would be lost by moving abroad?
• Are there any obvious risks?

A First Hearing Dispute Resolution Appointment (FHDRA) will be listed. CAFCASS will address the court before the Final Hearing and inform the court of their findings, having undertaken an assessment that includes safeguarding checks and considering the views of the parent and child, if appropriate given their age and maturity. Both parents will have the opportunity to set out their case before the court and the court will proceed to look at a wide range of considerations related to the children and the advisability of permitting the relocation abroad.

The court will have your statement and the other parent’s statement and possibly other relevant parties' statements such as grandparents. The CAFCASS report or an independent social worker’s report will also be available to the court and the parties. At the hearing the court will hear oral evidence from all the relevant parties that have presented statements. In the CAFCASS report the children’s views will be presented but sometimes, dependent on a child’s age and maturity, the court may also hear their oral evidence as well. The court will consider every angle relating to the application, including whether there are any ulterior motives to both the application and to its opposition by either of the former spouses.

Once the decision has been made it is very rare for a challenge can be successfully made. 

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation for being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

If you would like to know more about relocating abroad with your children after divorce, please contact us at clientservices@giambronelaw.com or click here.