International Relocation & Consent

When parents separate and one parent asks for permission to move to a different country with the children various issues and difficulties arise. The other parent may be prepared to consent to the move, but it is often conditional upon various factors. One of the usual conditions for consent to move to another country is that the arrangements for the children to spend time with the parent staying behind (also referred to as visitation rights) need to be agreed and formalised into a binding order.

If the parent remaining in the first country agrees to the children being moved to a second country subject to sensible contact arrangements being put in place with the leaving parent, what happens if the negotiations break down? If no agreement is reached before the move, then the leaving parent may be prevented from taking the children to live in another country as he or she will need the consent of the other parent. If the children are taken without the other parents’ consent then, assuming the move is to a country within the EU or which is a signatory to the Hague Convention on the Civil Aspects of International Abduction, the parent staying behind can apply for the children to be returned to the country where they were last resident.

If the move goes ahead whilst the negotiations about visitation are ongoing, the parent staying behind may still be able to demonstrate that the move was undertaken without his or her consent. In a recent case a mother took the children from Canada (where they had been living with both parents) to England without the father’s consent. The father indicated that he would apply to the court for a return of the children to Canada, but subsequently agreed with the mother that provided the arrangements for the children could be agreed, then he would consent to the children living in England. Two months later, the arrangements had not been agreed and the father applied for the children to be returned to Canada. The mother objected to the return and argued that the father had consented to the children living in England.

The Court held that the mother could not rely on the father’s consent. The father had been very clear that his consent was contingent upon the parties reaching an agreement on contact, which had not happened. The mother had known this was the case, and at no time had she been told that the children could remain in England if no agreement was reached.

This decision demonstrates that it may be possible for one party to consent to a move, but to make that consent conditional upon suitable arrangements for the children being put in place. The intention and conditions should be clearly recorded in any documents or communications relating to the move. The wording would need to be carefully considered and drafted to ensure that the conditional nature of the consent is clearly stated and that no concessions are inadvertently given. In every case there may also be other factors which could result in a different outcome and these may also need to be addressed with the benefit of expert advice. It is therefore important for any parent facing a request for their children to be moved to a different country to seek professional legal advice from an international family law specialist at an early stage.

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