Ex Wants to Take Child to Live in an EU Country: What Are My Rights?

People are much more international now. It is not uncommon for people to spend periods of time working abroad or to have relationships with someone from another country. International families are now common, but the international element can cause problems if the relationship ends and there are children. What if one parent wants to take the children to live in another country?

Thankfully most couples who separate are able to agree arrangements for their children between them, without the need for the help of solicitors, mediators or the court. Shared arrangements are becoming increasingly common, where the children spend similar amounts of time with their mother and father. Obviously this requires an element of cooperation between the parents and usually a close geographical proximity for it to work. The further apart the parents live the harder it is to make sure that the children have a full relationship with both parents, which is in their best interests in the vast majority of cases. This is particularly difficult to achieve if one of the parents decides that they would like to move to another country with the children. Given how easy it is to move within the EU, this is happening more and more. If this happens it is important that you know your legal position.

Do you have parental responsibility?

The first thing you must consider is do you have parental responsibility for your child? This allows you to have a say in the important decisions in your child's life, such as consenting to medical treatment, and more importantly, as in this case, a say in whether your child can move abroad permanently with your ex. As the law stands at present, all mothers automatically have parental responsibility for their child as soon as they are born. All father's married to the mother of their child also automatically have parental responsibility. Unmarried fathers whose child was born before 1st December 2003 do not have parental responsibility for their child unless it is formally granted by the court or a formal agreement is entered into with the child's mother in a prescribed form. Thankfully the law was changed in 2003, to take into account the fact that many unmarried couples now have children, and any father named on the birth certificate of a child born on or after 1st December 2003 automatically has parental responsibility for that child. If you are not named on your child's birth certificate as the father, you can obtain parental responsibility with the agreement of your child's mother or through the court.

If you have parental responsibility and your ex wants to take the child to live abroad, your ex needs your permission. If you are agreeable to this, it is always recommended that you obtain a court order confirming your agreement and also detailing your contact with the child once the child moves abroad. Once the English court order has been made, a "mirror" order should be obtained from a court in the EU country that the child is moving to, as once the child moves abroad, any issues regarding the child would be dealt with by a court in the country where the child lives and not by an English court. You will need a lawyer in the country that your child is moving to, to deal with this. Although this can be expensive and time consuming, if your ex later reneges on the agreement you will find it much easier to deal with this issue in the foreign court as there will be a formal record of the arrangements that were agreed.

What if you do not agree?

If you do not agree to your child moving abroad, your ex will need to apply to court and ask the court to make an order agreeing to her request. Every case of this nature is fact specific, so it is important that you obtain specialist legal advice so that you present your case in the best possible light to the judge. If the judge does agree to the child moving abroad, they will usually insist that the court order include details of the time that the child will spend with you. You will then be advised to obtain a "mirror" order in the country that the child is moving to.

If your ex takes the child abroad permanently without your consent, this is technically parental child abduction and there are international legal agreements between Britain and the other EU countries, which would hopefully facilitate the return of the child to this country. If this happens you must contact a specialist lawyer immediately as it is important that an application is made to court as soon as possible for the child's return. Once the child has been returned, the English court will have to decide if it is appropriate for the child to move abroad permanently with your ex.

If you are separated from your child's mother, there will inevitably be many issues that arise regarding your child. Hopefully you will be able to deal with these between you, but if not it is important that you obtain the advice of a specialist family lawyer, which will then enable you to consider the best way forward for you and your child.

About the Author

This was a guest blog written by Fiona Wood, Family Law partner at specialist divorce solicitors, Pannone Law Group.