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When Your Ex Emigrates With Your Children

By: Guest Article - Updated: 30 Oct 2018 | 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.

Check out the Separated Dads Forum... It's a great resource where you can ask for advice on topics including Child Access, Maintenance, CAFCASS, Fathers Rights, Court, Behaviour or simply to have a chat with other dads.

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[Add a Comment]
Hi, My friend and his wife are divorcing. They are both Hungarian. She left the marital home to fly to her home country with their daughter stating that as soon as he moves out they would come back so he can have regular contact with his daughter. She is now saying she is never coming back to the uk and is not letting him have any communication with his daughter. He’s at a total loss with what to do and very upset. Does anyone know what his rights are please.
Furbz777 - 14-Oct-18 @ 5:17 PM
My husband and I divorced in 2009, 1 year after my son was born. My ex is not on the birth certificate (he asked not be). He only ever made maintenance payments for 2 yrs and then just stopped in 2011. He has not made contact in over 6 years (my son is now 9yrs). He is not in our lives at all and has since started a new family. I want to emigrate to Australia (I am a citizen but have never lived there), and I know my ex, if asked, would not agree (we had a very nasty break up) as he would not want to be helpful. DO you think the courts would allow me to emigrate with my son to Australia?
Tash - 4-Oct-18 @ 3:34 PM
Mark - Your Question:
I have a girlfriend since my divorce but have two children one three one and one five. If I move to another country does this effect them I’m worried they will forget me. I’m thinking of moving to where my girlfriend lives in Australia. I’m so worried my heart is broken into two. Ex has made my life impossible since split. What is the best decision to make I’m lost on this

Our Response:
Obviously, if you move away from the country to the other side of the world it is going to impact upon the relationship with your children because you will see them only infrequently. Even with the likes of Skype - your physical day-to-day contact with your children will be limited. However, we cannot make such a decision on your behalf. Only you alone can make such a decision.
SeparatedDads - 13-Sep-18 @ 11:46 AM
I have a girlfriend since my divorce but have two children one three one and one five. If I move to another country does this effect them I’m worried they will forget me. I’m thinking of moving to where my girlfriend lives in Australia. I’m so worried my heart is broken into two. Ex has made my life impossible since split. What is the best decision to make I’m lost on this
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kelvin - 25-Aug-18 @ 1:12 AM
I live in Australia and my ex and 2 children live in the UK. Child services have deemed the mother not fit to care due to her drinking habit and have been housed the children 14 & 15 with their grandparents. I am unable to get hold of their passports at the moment to fly them to me. Are there amy laws on emergency passports and getting them to Australia in the short term whilst i look into long term plans?
Ozdad - 24-Aug-18 @ 3:42 PM
Jon - Your Question:
Hi My son lives with me and has done so for the last 7 years. He is aged of 14.He does not want any contact with his natural mother. His sister who is older also has no contact with him. I have a new job in New york and. We have a contact order and its states son lives with father and daughter with mother. Mother is awkward and originally abandoned the children for 3 and half years with no contact whatsoever.Then she applied to the court for full custody. My daughter decided to live with her mother. Case was in Dec 2016. Mother and I are not on speaking terms and never will be. My job starts on December and I dont want to disrupt my childs school and it is his option. I am allowed to take him out of the country for a month on the residency order. So do I take him and bring him back every month until the court makes a decision or wait until a court makes a decision

Our Response:
Unfortunately, we cannot help with your question as our knowledge is of UK-based family law, not US. You would need to seek professional family law advice where you live.
SeparatedDads - 10-Aug-18 @ 10:30 AM
Hi My son lives with me and has done so for the last 7 years. He is aged of 14 .He does not want any contact with his natural mother. His sister who is older also has no contact with him. I have a new job in New york and. We have a contact order and its states son lives with father and daughter with mother. Mother is awkward and originally abandoned the children for 3 and half years with no contact whatsoever. Then she applied to the court for full custody. My daughter decided to live with her mother. Case was in Dec 2016. Mother and I are not on speaking terms and never will be. My job starts on December and i dont want to disrupt my childs school and it is his option. I am allowed to take him out of the country for a month on the residency order. So do i take him and bring him back every month until the court makes a decision or wait until a court makes a decision
Jon - 9-Aug-18 @ 1:49 PM
Paddington - Your Question:
Hello, I'm English, my partner is Australian. Our daughter who just turned 2 was born in Australia but has dual citizenship, 2 months after she was born we moved to Israel for my work, and then in March this year we all moved to England - again for my work. Things have broken down a lot between us as a couple and I fear we may be heading to a crunch time where we call it quits. What are our options? Because we currently reside in the London can I press to keep our daughter here, is the fact she was born in Australia a strong case for my partner to legally take her back there?

Our Response:
Much depends upon who is the day-to-day primary carer of your child. If the matter goes to court (a last resort), it is generally the primary carer who maintains the role, regardless of where your child was born. As in all cases, the court’s main concern is the welfare of the child in question. The court will always put the child’s best interests first and this main issue will determine the outcome of any application for an order. Hopefully, you can decide between you if your marriage unfortunately breaks down.
SeparatedDads - 17-Jul-18 @ 11:14 AM
Hello, I'm English, my partner is Australian. Our daughter who just turned 2 was born in Australia but has dual citizenship, 2 months after she was born we moved to Israel for my work, and then in March this year we all moved to England - again for my work. Things have broken down a lot between us as a couple and I fear we may be heading to a crunch time where we call it quits. What are our options? Because we currently reside in the London can I press to keep our daughter here, is the fact she was born in Australia a strong case for my partner to legally take her back there?
Paddington - 16-Jul-18 @ 9:58 AM
Hi My partner was issued a contact order in the U.K. in 2016 in the same order his ex was granted permission to relocate to Portugal with their daughter. Contact broke down at easter and we triec to enforce in U.K. the judge said there was no jurisdiction, we should mirror the order and enforce in Portugal. Do you know how I go about starting the process for this? Does this have to be done by a solicitor? Thanks
Rosebud - 12-Jun-18 @ 10:16 PM
Hi. I was wondering what happens if cafcass doesnt get a section 7 to me by the date that was issued at a court hearing. Thanks
Matthew hughes - 1-Jun-18 @ 3:54 PM
Ben - Your Question:
Hi there, although I am not biologically his Dad I have been 'Daddy' to my six year old son since birth. I have never officially adopted him but have cared for him pretty much equally to his mother. His mother and I split a year and a half ago but are still technically married. She has recently met someone else and informed me last week that she is planning to move to Crete with him and our son. Is there anything I can do legally? I guess I don't have PR (technically at least) but is there anything I can do at this stage to apply for this?Thanks.

Our Response:
Unfortunately, there is little you can do if you are not the biological father. Even if you were the biological father, the court will not attempt to stop the other parent getting on with their lives. All you can do, is to hope your ex will still grant you access. You may wish to seek legal advice if you think you have a case to prevent the move.
SeparatedDads - 3-May-18 @ 3:03 PM
Hi there, although I am not biologically his Dad I have been 'Daddy' to my six year old son since birth. I have never officially adopted him but have cared for him pretty much equally to his mother. His mother and I split a year and a half ago but are still technically married. She has recently met someone else and informed me last week that she is planning to move to Crete with him and our son. Is there anything I can do legally? I guess I don't have PR (technically at least) but is there anything I can do at this stage to apply for this? Thanks.
Ben - 1-May-18 @ 9:03 PM
Shel - Your Question:
Hi I want to move to Australia with my partner of 10 years and my 16 year old daughter but my ex, my daughters father says HELL NO.Can he actually stop her moving out with us? Does she have to be 18? We live in the U.K. ATM

Our Response:
Your daughter's father can apply for a Prohibited Steps Order if he doesn't think it is in your daughter's best interests to leave the UK. However, much will depend upon whether your daughter wishes to leave the UK or not. At 16 while she is still under PR, her opinion will be taken seriously by the courts. As in all cases, the court’s main concern is the welfare of the child in question. The court will always put the child’s best interests first and this main issue will determine the outcome of any application for an order.
SeparatedDads - 23-Apr-18 @ 11:09 AM
Hi I want to move to Australia with my partner of 10 years and my 16 year old daughter but my ex, my daughters father says HELL NO..Can he actually stop her moving out with us? Does she have to be 18? We live in the U.K. ATM
Shel - 22-Apr-18 @ 8:42 PM
@Distanced - don't quite get this. Has your ex gone back to the US, or is she still in the UK?
Ben\ - 2-Mar-18 @ 2:21 PM
Hi, My ex and I had a temultuos end to our 13 year marriage. Largely financial in nature. It was exascerbated by the love we both have for our kids. She wanted to move back to the USA for a year and separate. I'm not from there so was worried for the kids so wanted us to engage in therapy to foster forgiveness at a minimum so that we could have a functional relationship post divorce (which was revealed as her real intent later).Long story short I agreed to divorce and give her full custody so that she could deal with anything that might come up in my absence.My questions are not legal but more moral and practical: since then she has interpreted that to mean that she is their only parent and can restrict and monitor my comms with the kids.The agreement we made re: contact frequency and visitation was fine for the broad strokes. I'm now seeing its limitations. While she is a good person at heart she's obviously resentful. I was patient for 8 months on her restricting contact with my kids (it was very hard as I was a hands on Dad) but then I realised that she was causing the kids to detach from me.They were exceptional kids before and are now in therapy and I believe they are suffering unnecessarily at the loss of their father. My contention is that, even while countries apart, I remain their parent and have a right to participate meaningfully in their lives.Things are slowly getting better since I insisted on a weekly call with the mother to discuss the kids and I have worked on how to make calls engaging for the kids (plus insisted that scheduled times be supported) the kids now call me spontaeneously whereas before a week would pass without contact depending on their mothers mood.I'm confident things will improve over time but am conscious that the kids only have one childhood and benefit from having both mother and father in their lives. Thoughts?
Distanced - 27-Feb-18 @ 8:33 PM
My ex remarried and moved to America due to her husbands job,this was agreed by both parties, the contract for this was 3 years in April 2018 the contract is up and I’m expecting them to comeback to England.but I have heard that my ex has no intention of coming back to england but my daughter does not want to stay in America she is 13 where do I stand on this
Chaz - 30-Dec-17 @ 2:26 PM
Smorgan- Your Question:
My partner and his ex split up five years ago. She lives in Scotland with their 7 year old son, he lives in Northampton. My partner pays regularly for his son and regularly calls him. In all fairness he doesn't get to see his son as much as he would like. We have planned several times over the past few months to have his son down with us but his ex has cancelled. She has now decided to block my partners number and all of his families numbers from her phone, saying that no body is having contact. What can we do to gain regular access to his son? I'm guessing the laws are slightly different in Scotland. Any help and advice would be a massive help. Thank you

Our Response:
Your partner may wish to speak directly to Relationships Scotland via the link here, for help and advice.
SeparatedDads - 12-Dec-17 @ 2:12 PM
My partner and his ex split up five years ago. She lives in Scotland with their 7 year old son, he lives in Northampton. My partner pays regularly for his son and regularly calls him. In all fairness he doesn't get to see his son as much as he would like. We have planned several times over the past few months to have his son down with us but his ex has cancelled. She has now decided to block my partners number and all of his families numbers from her phone, saying that no body is having contact. What can we do to gain regular access to his son? I'm guessing the laws are slightly different in Scotland. Any help and advice would be a massive help. Thank you
Smorgan - 11-Dec-17 @ 7:20 PM
After many cases in courts, appeals I was removed from UK inspite of the fact I have two daughters UK born. I was a long over stayer in UK. The courts want proof that my daughters need me and their should be evidences that I have been in contact, pictures are not acceptable they need receipts of expenses. I have now currently filed case in family court for Child arrangement and direct contact since my ex was not even attending calls and answer to my messages were totally silent. The case also is not going through in the right direction, the judge not agreeing for a direct contact and foresees the case only for immigration purposes, she wants indirect contact to continue for a year then apply again, whereas I need direct contact order to support my daughters in UK since I do not have any other direct family. My ex wife totally un cooperative. Is it a crime that I need to be near my daughters and meet them on weekly basis, comfort them, love them vice versa. Would not my daughters also be deprived of a parent ? I cannot afford much case fees therefore current solicitors are reluctant and also have not presented my case properly. Can you please help ?
Baba - 31-Oct-17 @ 5:39 PM
Tired kiwi- Your Question:
My wife and I separated and divorce is pending. She first moved to the uk to be closer to family and I followed to be a dad to my daughter. I have paid £ 400 a month in maintenance without fail even when unemployed. She has now reconnected with an old flame in Australia and wants to move out there with my daughter. I have since made a life in the U.K. ( Northern Ireland) and don't want to be separated from my daughter who I see 2 days a week on average and sometimes more in school holidays. Can I stop her ?

Our Response:
If you have parental responsibility, your ex has to request your consent if she wishes to move out of the country. If you refuse, she would have to take the matter to court. However, if your ex can justify why she needs to return to her home country and is open to still wanting you to continue to have a relationship with your daughter (albeit, long distance), it is likely the court would allow this, if your ex is the primary carer of your child. As in all cases, the court’s main concern is the welfare of the child in question. The court will always put the child’s best interests first and this main issue will determine the outcome of any application for an order.
SeparatedDads - 6-Oct-17 @ 12:38 PM
My wife and I separated and divorce is pending. She first moved to the uk to be closer to family and I followed to be a dad to my daughter. I have paid £ 400 a month in maintenance without fail even when unemployed . She has now reconnected with an old flame in Australia and wants to move out there with my daughter. I have since made a life in the U.K. ( Northern Ireland) and don't want to be separated from my daughter who I see 2 days a week on average and sometimes more in school holidays . Can I stop her ?
Tired kiwi - 3-Oct-17 @ 11:44 PM
We have been separated 4 years.My daughter is 5.She has an older half brother who is 9.My ex lives a chaotic, crazy life.She has MS which is not the issue.She is able to walk short distances and climb stairs etc.She has carers who help her with daily tasks including looking after the children.I have just discovered that almost 3 years ago one of her carers was a lad who was subsequently convicted as a paedophile. He was proved to have abused my daughter's older brother but there was no evidence of abuse of my daughter. This was all concealed from me. At the time of the incidents I was actually at court regarding neglect of my daughter but the judge said that the evidence was not sufficient to revoke our existing order.Social services report said that although they were involved with the family, they did not believe my daughter to be at risk.They did however have a safety plan in place which I was not informed of at the time.There is no need for a safety plan in my home as there is no risk. I feel so frustrated.I worry constantly but the court remain their stance of favouring the mother.Please advise me... is there any point in going back to court again?I cannot afford for the court to award her costs for me to pay.I represented myself last time and would have to again.My ex had a barrister costing her £10k.
John - 19-Sep-17 @ 9:34 AM
Ste - Your Question:
Hi my ex is planning on moveing to germany in 3 years we have a court order in place where I have my child evry weekend where do I stand if she moves and takes my child can I stop payments to her or do I still need to pay

Our Response:
As you are the biological father of your child, wherever the mother of your child lives then you are still responsible for paying to help support your child. Your ex has to request your consent if you have parental responsibility and she wishes to move away. If you refuse, then she would have to apply to the courts for permission. In which case the court would decide upon what it thinks is in the best interests of your child when making a decision.
SeparatedDads - 15-Sep-17 @ 2:33 PM
I have been approached by my ex and her new fella asking if would be prepared to move to Canada. He is originaly from there and is a doctor so potentialy could give the kids and my ex a great life over there. As parents we all get on really well and do everything for our kids. He even has a reletive ready to offer me a job in the industry im already working in. My concerns are things like would moving there at the same time as them affect my parental rights. What happens if i cant stay due to visa etc and what about child support. Any advise would be amazing right now.
Kidder - 12-Sep-17 @ 3:59 PM
@SS - It's great that you still have a good relationship with your ex that she has asked you to move too. While a US citizen can immediately petition for a spouse to relocate to the US, it would be a bit more difficult for you. A lot of thought needs to go into this from either end - but I'd wait awhile yet to see how things progress. About your feelings for her; that's a different matter entirely (you obviously have been faced with the reality of losing her), and one you have to work out in your own head. The things is.. you have time here and anything could happen in the next few months. Long distance relationships are difficult, rarely straightforward and with so many variables that you will need to take a back seat, wait and watch.
AndyDF - 11-Sep-17 @ 2:07 PM
My ex and I separated 3 years ago and despite a few problems in the early days we have developed a good working relationship and share the care of the 2 kids (ages 3 & 6) in a roughly 60:40 split in her favour. 4 weeks ago she announced she'd "accidentally" met an American man online and was going to Chicago to stay with him. On her return it would seem they hit it off and she states she plans to marry him and move there with the kids within 2 years. As she doesn't want to damage any relationship I have with my kids she has asked if I will move there too. I immediately thought "no way!" However after much thought I start thinking why not? New life new start maintain relationship with kids. What can go wrong? She promises she'd never just take them (I have their passports anyway). I asked her what she'd do if I said no. She said she doesn't know. Hasn't mentioned going to court although I'm sure I could put up a good argument against her going and have a good chance of winning. What do I do? Risk a new start? I have few ties in this country and have a job which I could quite easily do over there (I'm a registered nurse). She says it's amazing over there and the kids would love it and have a better life than they do here. Incidentally, I thought I was over her. The fact she's now entered into a new relationship (albeit very suddenly) has absolutely knocked me for six and I am struggling to figure out why!
SS - 10-Sep-17 @ 5:57 PM
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