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When Your Ex Emigrates With Your Children

By: Guest Article - Updated: 11 Dec 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.

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]
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
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
Ste - 8-Sep-17 @ 6:55 PM
Clark K - Your Question:
Hi, my ex has requested to take my children to live in Greece and then Cyprus July 2018 as she is getting Married in December to a squady and he will live over there in the barracks. I am on the birth certificate but see my children via contact centre as court granted me. Can someone help me understand my rights at this point? Do I legal rights to stop my children going, if I let them go legally do I have any rights in the future? Will I have to pay maintenance when I won't see them anymore? I pay £266.00 a month atm. Thank you for any advice you can give me.

Our Response:
If you have parental responsibility of your children, your ex has to request your permission to take your children out of the country, please see link here . If you refuse permission, your ex will have to apply to court. 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. If you currently only have contact to your children through a contact centre, then it is likely the court will allow this as your ex is quite firmly the resident-parent and the day-to-carer of your children. You can still request contact if the matter goes to court and the court will consider an alternative measure. Likewise, if you agree to your ex leaving the country with your children, you can come to an agreement between yourselves. However, any agreement made outside court would not be enforceable. Theoretically, you will still be responsible for paying child maintenance regardless of whether your children live in the UK or not. The Reciprocal Enforcement of Maintenance Order (REMO) Unit helps to register and enforce child maintenance orders internationally. However, there are exceptions and some countries that do not fall under the REMO remit. Here is a list of countries where the payment of child maintenance is enforceable by law, please see link here .
SeparatedDads - 1-Sep-17 @ 2:32 PM
Hi, my ex has requested to take my childrento live in Greece and then Cyprus July 2018 as she is getting Married in December to a squady and he will live over there in the barracks. I am on the birth certificate but see my children via contact centre as court granted me. Can someone help me understand my rights at this point?Do I legal rights to stop my children going, if I let them go legally do I have any rights in the future?Will i have to pay maintenance when I won't see them anymore?I pay £266.00 a month atm. Thank you for any advice you can give me.
Clark K - 31-Aug-17 @ 9:29 PM
John - Your Question:
I have PR, my partner left to UK with my kids under pretence of a holiday and now wants to stay. If my kids get a UK passport are they officially residents of UK? Do I have to sign anything for this to happen and if I do am I relinquishing my rights to bring them home under The Hague convention?

Our Response:
You can still file for abduction of your children have been taken from the country without consent, please see link here .
SeparatedDads - 24-Aug-17 @ 3:54 PM
I have PR, my partner left to UK with my kids under pretence of a holiday and now wants to stay. If my kids get a UK passport are they officially residents of UK? Do I have to sign anything for this to happen and if I do am I relinquishing my rights to bring them home under The Hague convention?
John - 24-Aug-17 @ 3:42 AM
Hi there, we're from the UK. My son is now 8 and currently lives during the week at his mums and weekends with me and his step mum. Myself and my ex have no formal agreements in place and for the most part it's quite amicable. My son has told us his mum hits him, only ever feeds him ready meals and never does anything with him. He's been asking for a couple of years now to live with us instead, we would love him to but with his mums aggressive moods and tendency to threaten us with court we've not broached the subject. My wife (sons stepmum) has the possibility of continuing her career in the states, somewhere we all love and would all gladly move to. At 8 would the courts take my sons testimony about treatment and his wishes into account?
Chilli - 18-Aug-17 @ 7:57 PM
Hi. I am currently going to court, originally to refuse to allow my ex to remove my son from the jurisdiction but now I am just trying to get a court ordered visitation schedule. They are moving to the USA. My main question is costs. I am saying that the costs of returning my son to the UK should fall on them as they are the ones removing him. They are expecting me to contribute toward the air travel but I have other kids who will have to suffer financially if I now have to put more money away each year for air travel. Would a court agree? I don't think it's fair that I lose my son and I have to pay more for that fact,and disadvantage my other children when I am not the one imposing this change. I will actually be funding one trip a year where I will go visit him there and I will use the existing child support to fund that trip.
TRE - 21-Jul-17 @ 9:05 PM
Colsty - Your Question:
I am Australian and my son was born in Australia, he is 15 years 11 months, turning 16 in two weeks.He also has Argentinian citizenship ( my ex wife is Argentinian). When he was 4 years old my wife took him to Argentina and didn't come back. I moved to Argentina to be near him, we divorced there. I worked in Argentina and payed maintenance, I had access to my son during school holidays and some weekends. One year and half ago I returned to live in Australia, the court in Argentina let me bring my son for six months to Australia, he didn't go back to Argentina when he was due to do so, he was 14 years old and asked to stay here, I notified immigration about the situation, he told his mum he wanted to stay in Australia to live with me and was happy here. Now, only two weeks before turning 16, we are going through process in court in Australia because his mother wants him back in Argentina and has filed a case thru Hague convention. My son is a young man who wants to stay in Australia. What are his rights?

Our Response:
I'm afraid it is difficult to say, as what you committed was effectively abduction. However, due to his age he will be allowed to voice his opinion. The court will always decide what it thinks is in the child's best interests making it impossible to predict what the outcome might be.
SeparatedDads - 17-Jul-17 @ 11:28 AM
I am Australian and my son was born in Australia, he is 15 years 11 months, turning 16 in two weeks. He also has Argentinian citizenship ( my ex wife is Argentinian). When he was 4 years old my wife took him to Argentina and didn't come back. I moved to Argentina to be near him, we divorced there. I worked in Argentina and payed maintenance, I had access to my son during school holidays and some weekends. One year and half ago I returned to live in Australia, the court in Argentina let me bring my son for six months to Australia, he didn't go back to Argentina when he was due to do so, he was 14 years old and asked to stay here, I notified immigration about the situation, he told his mum he wanted to stay in Australia to live with me and was happy here. Now, only two weeks before turning 16, we are going through process in court in Australia because his mother wants him back in Argentina and has filed a case thru Hague convention. My son is a young man who wants to stay in Australia. What are his rights?
Colsty - 15-Jul-17 @ 3:56 AM
Lorron - Your Question:
My wife what's separate and looking to get council hone. She has stop helping me pay bills towards are family home. Is there anything I can do and she will not leave

Our Response:
There are very few circumstances where you can make your spouse leave the home. You can’t change the locks or force your wife to leave, the best way is to try to take time to figure out what you both want and need, please see CAB link here for more information. If you cannot agree between you regarding bills and finances, then mediation should be suggested.
SeparatedDads - 13-Jul-17 @ 12:10 PM
My wife what's separate and looking to get council hone.She has stop helping me pay bills towards are familyhome.Is there anything I can do and she will not leave
Lorron - 12-Jul-17 @ 12:52 AM
Lou - Your Question:
My wife and I are seperated and on a 457 visa ( I'm defacto on her visa). How do I proceed to return myself and children back to UK? Both have parental responsibility with an interim parenting order in place.

Our Response:
You must tell the Department of Immigration and Border Protection if you divorce or separate from your partner if your visa is based on your relationship. If you wish to return to the UK with your children and your wife does not agree, then you would have to apply to court. If you leave the country with your children and without authorisation from your wife, then you may be charged with abduction.
SeparatedDads - 29-Jun-17 @ 9:55 AM
My wife and I are seperated and on a 457 visa ( I'm defacto on her visa) . How do I proceed to return myself and children back to UK? Both have parental responsibility with an interim parenting order in place.
Lou - 27-Jun-17 @ 3:07 AM
Franz - Your Question:
Hi I was not married to my australian bf and im filipina my ex took my son to australia what should I do. I dont live in australia but I want to take back my son as he is not capable looking after our son. Is it possible I can bring back my son to philippines.

Our Response:
The Philippinesis part of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention). If you did not give permission for your ex to take your child out of the country then this may be classed as abduction, please see link here for more information.
SeparatedDads - 26-Jun-17 @ 1:46 PM
Hi I was not married to my australian bf and im filipina my ex took my son to australia what should i do. I dont live in australia but i want to take back my son as he is not capable looking after our son. Is it possible i can bring back my son to philippines.
Franz - 25-Jun-17 @ 1:10 AM
Suifc83 - Your Question:
Hi,my son is 5 months old and we live with my his father, but I want to go back to my country ( portugal). My partner says is not going with us. I'm a bit afraid he will say that he won't allow me to take our son with me. So I want to know what arregements we have to do for me to move abroad with my son in case he agrees or not. And how much will it cost and how much time. We are not married.

Our Response:
If your partner has parental responsibility and will not give his consent, then your only option would be to apply to court for a Specific Issue Order, please see link here. If you cannot afford legal representation you can self litigate, please see link here . If you are on a low income, you may also be able to get help with court costs, please see link here.
SeparatedDads - 20-Jun-17 @ 3:12 PM
Hi,my son is 5 months old and we live with my his father, but I want to go back to my country ( portugal) . My partner says is not going with us. I'm a bit afraid he will say that he won't allow me to take our son with me. So I want to know what arregements we have to do for me to move abroad with my son in case he agrees or not.And how much will it cost and how much time. We are not married.
Suifc83 - 20-Jun-17 @ 12:15 PM
Chubby - Your Question:
My ex wife moved to uk with our three children without my permission and she deprives me of being in their lives. I've never lived without my children and it's painful ?? I've faced numerous abuse, threats and all sorts of punishments from her. Now I don't know if I'll ever see my children again. Please help me.

Our Response:
I can only suggest you seek legal advice as unless your ex agrees to give you access, this would be a matter for the courts. You do not say when your ex moved to the UK - but if she moved without your permission (with the children) and you are the registered father of your children she could be guilty of committing abduction.
SeparatedDads - 12-Jun-17 @ 3:54 PM
My ex wife moved to uk with our three children without my permission and she deprives me of being in their lives. I've never lived without my children and it's painful ?? I've faced numerous abuse, threats and all sorts of punishments from her. Now I don't know if I'll ever see my children again. Please help me.
Chubby - 9-Jun-17 @ 9:51 AM
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
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