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When Your Ex Emigrates With Your Children

By: Guest Article - Updated: 21 May 2017 | comments*Discuss
 
Children Abroad Wrongfully Removed

The modern world is getting smaller, with more and more people living and working abroad. It's no surprise that the number of international families is on the increase but what happens to the kids when these relationships break down and the mother wishes to return to their home country with the child? What rights does the father have?

Your Rights

If both parents have parental responsibility for a child it is a criminal offence in the UK to emigrate with a child without the permission of the other parent or without an order of the Court. Parents have Parental Responsibility for children in the following circumstances:

  1. The Mother - always has PR
  2. The Father - if he was married to the Mother, or if he was named on the birth certificate and the child was born after 1st December 2003 or if there is a PR agreement stamped by the Court

Outcomes

There are 4 outcomes if one parent wants to take the child abroad to live permanently:-
  1. Permission refused by the Court and the Mother abandons her plans or the child moves to live with the Father
  2. The Mother and child emigrate with the Father'sagreement
  3. Lawful removal of the child by the Mother
  4. Unlawful removal of the child by the Mother

Outcome 1 is self-explanatory but let's looks at the other 3 outcomes in more detail:

Outcome 2 - Emigrate with Father's Agreement

Where the parents reach an agreement which permits one parent to move abroad with the child whist ensuring that they maintain a good relationship with the other parent. International travel is much cheaper and often parents agree a schedule of annual contact involving return trips to the UK in the school holidays and weekends and visits by the non-resident parent to the child's new home. Other forms of contact can be agreed upon such as Skype, telephone, email and Face time.

In these circumstances it is always wise to apply to the Court to request an order in the agreed terms to prevent any problems further down the line. A court order may also be required by the immigration authorities if the proposed move is by a non-national who requires a Visa. Depending upon the Country where the child is going to be residing, it may be necessary to obtain a mirror order in the new state reflecting the terms of the English Court order. You cannot assume that Court Orders made here are enforceable abroad. If the move is to an EU country the order would be directly enforceable but unless the English court order expressly retains jurisdiction, it will pass to the new state after 3 months and in theory an application could be made in the new state to vary the agreed terms. If the new home is a signatory to the Hague Convention, the Central Authority in London can assist in enforcing a contact order abroad. If the new home is outside the EU and is not a signatory to the Hague Convention, for example Arab States and the Far East, retaining jurisdiction here or obtaining a mirror order is the best form of protection.

Outcome 3 - Lawful Removal of Child

Where parents cannot agree it is necessary for the parent wishing to remove the child to apply to the Court for permission to do so. If permission is granted, contact will also be ordered. This will then result in the lawful removal of the child. Depending on the child's destination and whether that country would enforce the English Court order (as in EU Countries) it may be necessary to obtain a mirror order in the new home country to ensure contact is maintained. See above " 2 .Agreement"

Outcome 4 - Unlawful Removal of Child

Where parents cannot agree and the parent wishing to leave simply takes the child without permission, this is parental child abduction. It is a criminal offence to remove a child from the UK without the permission of the other parent or order of the court (save for where the parent has a residence order and removal is for less than 28 days). If you suspect that your child has been taken abroad you will need to access specialist legal advice immediately. In some cases it is possible to stop a child leaving the country by notifying the ports and airports who will place the child's details on a watch list. If the child has already left the UK, a lot will depend upon where they have gone and whether that country has an agreement with the UK to return wrongfully removed children. There are unfortunately circumstances where children are not returned which could result in the child losing its relationship with the other parent.

If you are separated from your child's mother and these issues arise for you it is important that you obtain specialist advice from a family lawyer with an international background which will enable you to consider the best way forward for you and for your child to ensure your relationship is maintained.

About the Author

This was a guest post written by Louise Halford, a family law Partner at Pannone LLP who specialises in child abduction.

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My ex wife moved my sons to the US with my consent 18 months ago. We have a drawn up solicitors agreement that I will travel twice a year to see bits in lieu of maintenance. She now wishes to pursue legal means (US lawyer) to get maintenance from me, is she able to? Where do I stand and what is she able to achieve with legal action from the USA? Thanks.
Surfer - 21-May-17 @ 4:06 PM
haulier - Your Question:
A bit of advice please!!I live with my partner and her 8yr old son, and we are wanting to move to Australia but his father whom he sees every other weekend is not allowing us to go. We have offered to pay for the plane tickets for his son to come back at the school holidays. It works out that he will actually see him more this way than he already does. He has never paid a penny for him. we have never asked for any either. what are the options? if it was to go to court would they look favorable on that we are offering to pay for his son to be flown back every school holiday and also claim no money for maintenance. DJ

Our Response:
Child maintenance and child access have no bearing on each other and are not linked i.e finances should not be used as a bartering tool or as a justifiable reason. Many parents make promises and likewise find when they get to the other country cannot keep them, or in some cases do not intend to keep them. However, that is not to say a court would refuse your application if you can convince the court that leaving the country will be in the best interests of your son. Much also depends upon how old your son is (if he is over age-11, his preferences will be taken into consideration). Going to court is your only option if your ex refuses his consent. I can only suggest you seek some legal advice in order to explore your options.
SeparatedDads - 9-May-17 @ 10:00 AM
A bit of advice please!! I live with my partner and her 8yr old son, and we are wanting to move to Australia but his father whom he sees every other weekend is not allowing us to go. We have offered to pay for the plane tickets for his son to come back at the school holidays. It works out that he will actually see him more this way than he already does. He has never paid a penny for him. we have never asked for any either. what are the options? if it was to go to court would they look favorable on that we are offering to pay for his son to be flown back every school holiday and also claim no money for maintenance. DJ
haulier - 8-May-17 @ 8:01 AM
Js1984 - Your Question:
My ex has taken my son abroad. I have not got my name on birth certificate. Do I have any rights to bring my son back.

Our Response:
Unless you have parental responsibility, I'm afraid you have no rights. I can only suggest you seek legal advice to see if you have any options.
SeparatedDads - 19-Apr-17 @ 12:35 PM
My ex has taken my son abroad. I have not got my name on birth certificate. Do I have any rights to bring my son back.
Js1984 - 19-Apr-17 @ 3:11 AM
DJAM - Your Question:
Hi, I need some advice if possible, I have two children with my ex-husband, we currently live in the Uk. I'm engaged to a man in the USAF who is currently based over here but is due to go back to America in 2019. Would my ex-husband be able to stop us returning with my soon to be husband, even though it's not by choice to relocate? I would do everything possible for him to be in constant contact with them and plan to return to the Uk as often as possible. Obviously I would discuss this with him when the time is right but he has a tendency to be unpleasant and was mentally abusive to me when we were together.

Our Response:
As specified in the article, you will have to request permission from your ex husband to leave the country with your children. If he refuses, then you would have to apply directly through court. If your ex is a hands-on dad with his kids, then it is understandable he will not wish to be separated from them. However, some dads will give consent if they can't see a logical way around the situation and would rather the matter not go through court. If it does go to court, the court will always decide upon what it thinks is in the best interests of your children. It will rarely stop a person trying to get on with their lives - but will always decide upon children's welfare first.
SeparatedDads - 5-Apr-17 @ 1:46 PM
Clewis - Your Question:
I am English with two children from a previous relationship that broke down 5 years ago, my sons are 9 and 10. I am now married to a Australian man and wish to move to Australia with my two sons. My sons father is on both birth certificates but has little contact (only via text messages) he pays no child support and has never worked he lives on the other side of the country. Do I still need his permission to take my sons to Australia. Thank you I hope you can help

Our Response:
Yes, you do need his permission. If he refuses, you would have to seek permission through the courts. However, if your ex has little to do with his children, then you are more likely to be granted the move than if he was a hands-on dad who saw them every day.
SeparatedDads - 5-Apr-17 @ 12:22 PM
Hi, I need some advice if possible, I have two children with my ex-husband, we currently live in the Uk. I'm engaged to a man in the USAF who is currently based over here but is due to go back to America in 2019. Would my ex-husband be able to stop us returning with my soon to be husband, even though it's not by choice to relocate? I would do everything possible for him to be in constant contact with them and plan to return to the Uk as often as possible. Obviously I would discuss this with him when the time is right but he has a tendency to be unpleasant and was mentally abusive to me when we were together.
DJAM - 4-Apr-17 @ 8:12 PM
I am English with two children from a previous relationship that broke down 5 years ago, my sons are 9 and 10. I am now married to a Australian man and wish to move to Australiawith my two sons. My sons father is on both birth certificates but has little contact (only via text messages) he pays no child support and has never worked he lives on the other side of the country. Do I still need his permission to take my sons to Australia. Thank you I hope you can help
Clewis - 4-Apr-17 @ 6:20 PM
tam - Your Question:
I want to emigrate to Australia with my daughter and partner. my daughter dad has not got parental responsibility of her, has not seen her since she was 2months old and his name is not on the birth certificate. I have secured a job already and currently applying for visas. I have been told by Australian immigration that I need to obtain a court order to say I have permission to emigrate. how do I go about this?

Our Response:
I'm not sure how the Australian immigration office works. However, if there is no father registered on the birth certificate and he does not have PR, then in theory you should not have to provide this.
SeparatedDads - 28-Mar-17 @ 10:42 AM
i want to emigrate to Australia with my daughter and partner.my daughter dad has not got parental responsibility of her, has not seen her since she was 2months old and his name is not on the birth certificate.I have secured a job already and currently applying for visas.I have been told by Australian immigration that I need to obtain a court order to say I have permission to emigrate.how do I go about this?
tam - 27-Mar-17 @ 11:55 AM
Hi there, My wife who I have been separated with for almost 2.5 years decided to take my kids with her to Australia for the Christmas break. It has now been almost 2.5 months and she is still yet to return. She enrolled the kids into a new school without my knowledge and the current school in the uk have now released the kids places. I have joint ownership of the family home pay all bills and mortgage still. I also pay for my rent. I feel heartbroken that my kids are gone and my wife has not shown any proof that she will be coming back. I can not afford a lawyer and my business is now not doing well. Here are my options, please help: 1) move into the marital home with my partner - not ideal but need to know if there are any legal implications. I jointly own the home with my wife. But she has been living there with the kids until now. 2) rent the house out but what do we do with all the belongings? Pay for a storage unit, deal with agency fees and tenants - won't be able to account rent.
Matthew - 13-Mar-17 @ 1:55 PM
TezViper - Your Question:
Hi There,I wonder if someone can help. I am having an ongoing issue concerning my ex and the CSA in Australia. Basically in 2010 my ex said she wanted to move to Australia with my 6 year old daughter. AT the time I was obviously not happy. The offered several things to make it possible. Would pay for my flight every year, would not claim CSA and several other things. After speaking to solicitors, the advice was that I take it as she would probably be given permission in court if she applied. I was advised to get it put into a consent order though which I did.Anyway here we are 5 years down the line and she started a claim last year which I have so far objected to on the basis of the court order. I have just got off the phone with them and it is going for decision. It could take 90 days. This is incredibly frustrating and stressful right now and any advice would be appreciated if anyone has come across this before.I have a copy of the court order if anyone would like to take a look. Apparently she is saying that the part about the CSA is a notation and is not ordered by the court. The wording is that it states upon the parties agreeing each of these terms ( one of which is no CSA) that the court orders that my daughter can be removed.Anyone got any ideas please??

Our Response:
Much will depend upon whether there is a variation of circumstances on your ex's side which means she is justified to apply. Even if the child maintenance part had been ordered by the court, if her circumstances have changed and she can give a justifiable reason why she should now apply (i.e break up of relationship etc), then she would be eligible. It is also highly unlikely your daughter would be moved form a parent as a result of this order. Please also be aware, if the decision is being decided by the CSA/CMS and it lands in her favour, you may be liable for back pay from the date your ex launched the claim - I would make sure you check you will not, as you do not want to be caught short.
SeparatedDads - 28-Feb-17 @ 2:57 PM
Hi There, I wonder if someone can help. I am having an ongoing issue concerning my ex and the CSA in Australia. Basically in 2010 my ex said she wanted to move to Australia with my 6 year old daughter. AT the time I was obviously not happy. The offered several things to make it possible. Would pay for my flight every year, would not claim CSA and several other things. After speaking to solicitors, the advice was that I take it as she would probably be given permission in court if she applied. I was advised to get it put into a consent order though which I did. Anyway here we are 5 years down the line and she started a claim last year which I have so far objected to on the basis of the court order. I have just got off the phone with them and it is going for decision. It could take 90 days. This is incredibly frustrating and stressful right now and any advice would be appreciated if anyone has come across this before. I have a copy of the court order if anyone would like to take a look. Apparently she is saying that the part about the CSA is a notation and is not ordered by the court. The wording is that it states upon the parties agreeing each of these terms ( one of which is no CSA) that the court orders that my daughter can be removed. Anyone got any ideas please??
TezViper - 28-Feb-17 @ 9:03 AM
Ben - Your Question:
Hi there I need some advice,i currently reside in the UK with my son (8 years old) and am considering moving to the USA to be with my wife with him. my sons mother doesn't see him regularly even though she lives a 15 min drive from us. She did not have ANY contact with him from 30/01/2016 until the 02/10/2016 not even a card or phone call on his birthday and since then has seen him in total for about 4 or 5 days.Does she still retain any parental responsibility for him?I would never take him out of the country without advising her and arranging all types of communication between them like skype, email, text and telephone (even though I don't think she would use them as she doesn't now) as well as time together when we are back in the UK and I am aware that I need to obtain some for of consent from her for us to move. but can you ad vise of the FORMAT of the consent? I'm assuming that she'd need to sign a document but I'm not sure of its content and whether or not it needs to be witnessed or not.Any advice would be great at this point.Regards

Our Response:
If you wish to take your son to live abroad permanently, you will need the permission of the other parent with parental responsibility. Regardless of whether the mother of your child has seen your child, she still has PR. If your ex agrees, for your peace of mind this is probably best arranged through a solicitor. If your ex refuses, you will need to apply to court for a relocation application, or leave to remove.
SeparatedDads - 24-Feb-17 @ 3:08 PM
Hi there I need some advice,i currently reside in the UK with my son (8 years old) and am considering moving to the USA to be with my wife with him. my sons mother doesn't see him regularly even though she lives a 15 min drive from us. She did not have ANY contact with him from 30/01/2016 until the 02/10/2016 not even a card or phone call on his birthday and since then has seen him in total for about 4 or 5 days.Does she still retain any parental responsibility for him?I would never take him out of the country without advising her and arranging all types of communication between them like skype, email, text and telephone (even though I don't think she would use them as she doesn't now) as well as time together when we are back in the UK and I am aware that I need to obtain some for of consent from her for us to move. but can you ad vise of the FORMAT of the consent? I'm assuming that she'd need to sign a document but I'm not sure of its content and whether or not it needs to be witnessed or not.Any advice would be great at this point.Regards
Ben - 24-Feb-17 @ 1:11 PM
Hi, I am from Argentina, my husband English and we live in England with our British /Argentinian 2 year old. MY husband is the worker and I am a stay at home mom. If I have a home in my home country, the health system is free like the NHS, the school system is free like in the UK with free daycare since 45 day old babies, so I have a place to leave her while I work/look for work, and also have family that helps me financially. Is it posible that if I separate and want to go back home with her, a court would rule in my favour to leave the UK? My husband, when we argue, tells me thst since he is the one that works, he would get to keep our daughter if we split. Is it not taken in considerstion the fact that he can work becausr I look after our daughter and we dont pay daycare? Are casea like mine usually difficult to rule in favouur of the mom to leave the country, since I would not be able to stand on my feet with how difficult daycare cost is and a single parent? And I would be able to donit in Argentina? Thank you!
Tana - 18-Feb-17 @ 12:20 AM
Hi, I am from Argentina, my husband English and we live in England with our British /Argentinian 2 year old. MY husband is the worker and I am a stay at home mom. If I have a home in my home country, the health system is free like the NHS, the school system is free like in the UK with free daycare since 45 day old babies, so I have a place to leave her while I work/look for work, and also have family that helps me financially. Is it posible that if I separate and want to go back home with her, a court would rule in my favour to leave the UK? My husband, when we argue, tells me thst since he is the one that works, he would get to keep our daughter if we split. Is it not taken in considerstion the fact that he can work becausr I look after our daughter and we dont pay daycare? Are casea like mine usually difficult to rule in favouur of the mom to leave the country, since I would not be able to stand on my feet with how difficult daycare cost is and a single parent? And I would be able to donit in Argentina? Thank you!
Tana - 18-Feb-17 @ 12:19 AM
Hi, I am from Argentina, my husband English and we live in England with our British /Argentinian 2 year old. MY husband is the worker and I am a stay at home mom. If I have a home in my home country, the health system is free like the NHS, the school system is free like in the UK with free daycare since 45 day old babies, so I have a place to leave her while I work/look for work, and also have family that helps me financially. Is it posible that if I separate and want to go back home with her, a court would rule in my favour to leave the UK? My husband, when we argue, tells me thst since he is the one that works, he would get to keep our daughter if we split. Is it not taken in considerstion the fact that he can work becausr I look after our daughter and we dont pay daycare? Are casea like mine usually difficult to rule in favouur of the mom to leave the country, since I would not be able to stand on my feet with how difficult daycare cost is and a single parent? And I would be able to donit in Argentina? Thank you!
Tana - 18-Feb-17 @ 12:19 AM
Chris.t - Your Question:
My Canadian ex wife wants to get dual citizenship for our 7 year old son and a Canadian passport. My so and I are British but I'm afraid she might take my son and move to Canada without my permission if he's a Canadian citizen. Does anyone know where I can find any information on this?

Our Response:
As outlined in the article, if both parents have parental responsibility for a child it is a criminal offence in the UK to emigrate with a child without the permission of the other parent or (if the other parent refuses consent) without an order of the court. This is classed as abuction, please see link here.
SeparatedDads - 16-Feb-17 @ 11:58 AM
My Canadian ex wife wants to get dual citizenship for our 7 year old son and a Canadian passport. My so and I are British but I'm afraid she might take my son and move to Canada without my permission if he's a Canadian citizen. Does anyone know where I can find any information on this?
Chris.t - 15-Feb-17 @ 4:34 PM
@Ian thank you for your reply. We already have his passport, they did ask for details from the Mother, we gave them the info we knew such as name and DOB and told them that we have no idea where she is, hence why we can't send her birth certificate and that she has been absent for three years now and they sent us the passport after that statement. I am wondering how much it'll cost through court and if she'll try using her power of parental responsibility out of spite and won't give her consent. We tried finding her, via social media etc. also her parents seem like they don't know where she is or don't want to know. It's a pain.
Jenny - 8-Feb-17 @ 7:18 PM
@Jenny - wouldn't you have to get consent fromt he mother to apply for the boy's passport anyway? By law you're supposed to get consent to move away from any parent who has PR. The right way to do it would be to apply to court - or it can be classed as abduction. But if you apply through court, you shouldn't have a problem getting the go-ahead if the mother doesn't see the child. Ian.
IB65 - 8-Feb-17 @ 11:48 AM
Hello, I hope you can help me. I am from Germany, living in the UK since 3 years. I have 14 year old boy still living in Germany, am currently pregnant and have a 4 yer old son living with me. My partner since 3 years has an 8 year old son from a previous relationship. We are a happy patchwork family and are thinking about moving to Germany together. My partner and his ex have shared parental responsibility though my partner has the right that his son is to live with him. We have not heard of his ex partner for 3 years now. She has the address and his phone number. Her parents get in touch once a year and send presents for Christmas and Birthday which is in January. They never call or ask to meet him. The Mother is absent, we have no idea where she is, also she has no interest, she never sends a card or nothing, since 3 years. Where do we stand if we decide to move to Germany, do we need her permission? The boy doesn't even remember her and doesn't want her in his live. And she obviously isn't interested in being a part either. I hope you can give me some advice because we want to move before the baby is due. Thank you very much in advance. Kind regards Jenny
Jenny - 7-Feb-17 @ 7:19 PM
tata - Your Question:
I like some advices please, my never married my ex and he is not registered in to the birth certificate of my son who is now 7 but I let him to spent significant time with him until my son reports that he was unhappy with his dad so I stop the contact. Now the father send me o court for access but I wanted to leave to return to my country. do I still can do it even if a have a court hearing date my son has only my nationality we are registered expatriates from my country. What will happen if a don't attende the court ?

Our Response:
In this instance you would have to seek legal advice.
SeparatedDads - 31-Jan-17 @ 10:31 AM
Ilike some advices please, my never married my ex and he is not registered in to the birth certificate of my son who is now 7 but I let him to spent significant time with him until my son reports that he was unhappy with his dad so I stop the contact. Now the father send me o court for access but I wanted to leave to return to my country.do I still can do it even if a have a court hearing date my son has only my nationality we are registered expatriates from my country. What will happen if a don't attende the court ?
tata - 30-Jan-17 @ 10:17 AM
HelpNeeded - Your Question:
I am running out of places to get advice.My wife wants to take my child back home to the Philippines for 2 weeks. I have a good relationship with my wife, and a strong relationship with my 9 year old child. I am unable to travel with them, because of work commitments.Whilst I am fairly certain my wife will not abduct my child, I am just wondering if there are any steps I can take to prevent it happening, short of purely stopping him from going which would have a calamitous effect on our relationship.She has a sister based in the UK and another in New Zealand. Her sister once offered her a job elsewhere in the UK, and my wife was willing to accept it and take our child with her. If, for arguments sake, my wife disappeared with my child, would her family members be questioned by police especially since it can be proven that they my be helping her financially?

Our Response:
A Prohibited Steps Order (PSO) is an order granted by the court in family cases which prevents either parent from carrying out certain events or making specific trips with their children without the express permission of the other parent. This is more common in cases where there is suspicion that one parent may leave the area with their children. We have all heard the stories of a parent taking their child abroad and not returning. It then becomes extremely difficult for the other parent to get their child back. Thankfully, this is one of the scenarios that a PSO seeks to prevent. If you apply for a PSO, but specify you are allowing your wife to take your child on holiday, then your wife would have to appear before a magistrate and prove she is not likely to leave the country and not return. However, if your wife agrees and then still decides not to return to the UK once abroad, there is no easy way to deal with this, especially if your wife has taken your child to a country that has not entered into an agreement with the UK. Therefore, it may be hard to have your child returned to you. At present there are 45 countries that have entered into an agreement with the UK to help with the recovery of a child in such circumstances. If you are concerned I can only suggest you seek specialist legal advice regarding this matter. Please also see link here. Through this answer we have highlighted the worst case scenario and we do not wish to scaremonger. Abuduction is still very rare, and I'm sure your wife will take your son away for two weeks and they will return safely without any cause for concern, but abduction also does and can happen. Therefore, we are answering your question so that you can make a decision based upon having the full facts to hand.
SeparatedDads - 25-Jan-17 @ 11:39 AM
I am running out of places to get advice. My wife wants to take my child back home to the Philippines for 2 weeks.I have a good relationship with my wife, and a strong relationship with my 9 year old child.I am unable to travel with them, because of work commitments. Whilst I am fairly certain my wife will not abduct my child, I am just wondering if there are any steps I can take to prevent it happening, short of purely stopping him from going which would have a calamitous effect on our relationship. She has a sister based in the UK and another in New Zealand.Her sister once offered her a job elsewhere in the UK, and my wife was willing to accept it and take our child with her. If, for arguments sake, my wife disappeared with my child, would her family members be questioned by police especially since it can be proven that they my be helping her financially?
HelpNeeded - 24-Jan-17 @ 2:32 PM
Nanna - Your Question:
My husband and I are both English living in France and have separated but he says I am not allowed to take my children back home to England to live. We all struggle speaking French and I can't get a job so I have no other solution, will I get in trouble if I take them home? He works in France he has a good job.

Our Response:
As you both have parental responsibility, theoretically you would have to apply to court and the court would make a decision based upon what is in the best interests of your children. As specified in the article, if you take the children without your husband's consent, he could try to bring you and them back through the courts and the worst case scenario is; you could be charged with abduction. However, much depends upon how long you have lived in France and whether the children are established/schooled/have extendd family there etc. If the children are living with you, you cannot get a job and are struggling financially and you have a supportive family network in the UK, there is a good chance you will be allowed to leave the country, should the matter have to go to court.Therefore, I suggest you seek some legal advice in both France and the UK to explore your options.
SeparatedDads - 23-Jan-17 @ 2:07 PM
My husband and I are both English living in France and have separated but he says I am not allowed to take my children back home to England to live. We all struggle speaking French and I can't get a job so I have no other solution, will I get in trouble if I take them home? He works in France he has a good job.
Nanna - 22-Jan-17 @ 5:24 PM
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