A job offer in Dubai. A new partner in Melbourne. Family in Poland who could help with childcare. For a separated parent, a move overseas can seem the sensible next chapter. For the other parent, the same move can look like the end of a relationship with their child.
The family law judicial system for England and Wales takes the issue of relocation abroad with children very seriously indeed. If you are considering relocating abroad with your child, or have just learned that your former partner is, you should obtain urgent legal advice. The court process in these cases takes longer and is more difficult to navigate than most people expect.
Who has to agree before a child moves abroad?
A permanent move overseas cannot be made unilaterally. You need either the agreement of everyone whose consent the law requires, or an order from the family court.
Under section 1 of the Child Abduction Act 1984, consent is required from the child’s mother, the father if he has parental responsibility, and any guardian, special guardian, or person named in a child arrangements order as someone the child lives with for a child under the age of 16 years. A father without parental responsibility is not on that statutory list. However, he can apply to the court for both parental responsibility and an order preventing the move, so proceeding without speaking to him is rarely wise.
Where a child arrangements order is already in force specifying who the child lives with, section 13 of the Children Act 1989 adds a further requirement: consent must be given in writing by every person with parental responsibility, or the court’s permission obtained. Even where no order exists, and writing is not strictly required, get the agreement in writing anyway. Recollections diverge, and a clear email trail is far better evidence than a conversation at the school gates.
Holidays and shorter trips
Section 13 also contains an exception that is often misdescribed. A parent named in a child arrangements order as the person the child lives with may take the child out of the UK for less than one month without anyone else’s consent. It is often reported as a “28-day rule”, which is not what the legislation says and could catch you out in a 31-day month.
The exception is narrower than it sounds. It applies only if you hold a “lives with” order and the trip does not breach any other term of that order. If there is no order at all, the exception does not apply, and you need consent from everyone entitled to give it, even for a week’s holiday abroad. The UK Government has set out the basic position on taking a child abroad, and a signed consent letter with contact details and travel dates is worth carrying, as border officials do ask.
When a move becomes a criminal matter
Taking or sending a child under 16 out of the United Kingdom without the appropriate consent or the court’s leave is a criminal offence under the Child Abduction Act 1984. There are limited defences, including a genuine belief that consent was given or would have been given, but they are narrow and cannot be relied on as a strategy.
The civil consequences are equally serious. If the destination country is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the left-behind parent can seek the child’s summary return, and the courts of the destination country will usually not consider who is the better parent. They will consider whether the child should be returned for the courts here to decide. You can check whether a country participates using the Hague Conference status tables.
Moving elsewhere in the UK is a different question
Both section 13 of the Children Act and the Child Abduction Act address removal from the United Kingdom. A move from Cardiff to Glasgow or to Belfast is therefore not caught by either provision, and no criminal offence is committed.
That does not make it a free decision. The other parent can apply for a prohibited steps order to prevent the move, and the family court applies the same welfare test as it would for a move abroad. The Court of Appeal has confirmed that there is no separate, more relaxed test for internal relocation. In practice, a move to a remote part of Scotland can disrupt contact between a parent and child as much as a move abroad to Europe and courts are alive to this.
Trying to reach agreement first
Except where exemptions apply such as urgent or unsafe cases, you must attend a Mediation Information and Assessment Meeting before applying to court. Rule changes that took effect in April 2024 tightened exemptions considerably, broadened the definition of non-court dispute resolution to include arbitration, collaborative law and neutral evaluation, and gave the court power to pause proceedings so that parties can try those routes.
Relocation is not the easiest subject for mediation, but it is not hopeless either. Many disputes settle on terms that no one would have reached at a first hearing, such as a delayed start date, extended holiday contact, or funded flights. You can find an accredited mediator through the Family Mediation Council.
Applying to the court
Which application you make depends on what is already in place. If a child arrangements order provides that the child lives with you, you apply under section 13 for the court’s leave, usually seeking a variation of the existing order at the same time. If no such order exists, the application is for a specific issue order under section 8 of the Children Act 1989. Both are made on Form C100.
The court will order safeguarding checks, and Cafcass (or Cafcass Cymru in Wales) may be asked to prepare a welfare report before the final hearing. Relocation cases are evidence-heavy and rarely resolve quickly. Expect at least many months of court proceedings and avoid making irreversible commitments until the outcome is known.
How the court decides
The child’s welfare is the court’s paramount consideration, assessed against the checklist in section 1(3) of the Children Act 1989. This includes the child’s own wishes and feelings, considered in light of their age and understanding.
Older guidance from Payne v Payne was once treated as tilting the scales in favour of a primary carer with a genuine, well-researched plan. It no longer does. In K v K and then in Re F (A Child) (International Relocation Cases), the Court of Appeal held that there are no presumptions in a case governed by section 1, and that treating the Payne questions as rules is an error of law.
Instead, the court compares both parents’ proposals side by side, weighs the advantages and disadvantages of each, and then cross-checks that the outcome is proportionate interference with the family life of everyone affected. Two consequences follow. Refusal is a real possibility even where the applicant’s plans are excellent, and where care is genuinely shared, the effect of relocation on the child’s relationship with the other parent may weigh particularly heavily in the welfare assessment.
What a persuasive relocation plan looks like
Vague intentions fail. Courts expect specifics, supported by documents: the property, the school, and confirmation of a place; the job offer and salary; the visa status for both parent and child; healthcare arrangements; and a realistic household budget.
Just as important, and often less well prepared, is the proposal for the other parent’s ongoing relationship with the child. Set out the number and duration of visits each year, who will pay for flights, how indirect contact will be managed across time zones, and what happens if circumstances change. A plan that treats the other parent as an afterthought is often read as evidence of the applicant’s attitude, not merely as a gap in the paperwork.
Keeping the relationship going once a child has moved
An order made here is not automatically enforceable abroad. Since the end of the Brexit transition period, the 1996 Hague Convention provides the principal framework for recognition and enforcement of relevant orders between the UK and EU member states in cases falling outside the transitional arrangements for the former EU regime. Orders made in one contracting state are generally recognised by operation of law in another, although formal steps may be required before an order can be enforced and recognition can be refused on specified grounds.
For that reason, courts frequently make permission conditional on practical safeguards: a mirror order obtained in the destination country to ensure the contact arrangements are enforceable there, undertakings from the relocating parent, and, occasionally, financial security. Where the destination is not a party to the relevant Hague Conventions, as may be the case with countries such as China and the UAE, these questions become considerably more difficult. They should be addressed well before an application is issued.
If you want to prevent a move
If you are concerned that your child may be taken abroad without your consent, act quickly rather than waiting to see what happens.
A prohibited steps order can prevent removal from the jurisdiction and, in genuine emergencies, can be obtained urgently without notice to the other parent. The court can also order the surrender of passports, and in High Court proceedings the Tipstaff (the specialised enforcement officer for the High Court in England and Wales) can enforce location and passport orders. Where there is a real and imminent risk of abduction, generally within the next 24 to 48 hours, the police may place a port alert, which circulates the child’s details to ports and airports for 28 days.
Speed matters here for a reason that is easy to underestimate. Once a child has settled in a new country, the practical and legal position shifts, and returning them becomes far more difficult than preventing their departure would have been.
Take advice before you commit
Relocation cases are among the hardest decisions the family court makes, and the outcome turns on the quality of the evidence and the credibility of the plan rather than on any general rule about who usually wins.
Whether you are hoping to move or hoping to stop a move, speak to your solicitor before you make commitments you cannot easily unwind, whether that is resigning from a job, accepting an offer on a house, or booking flights. Early advice tends to widen the options available to you, whereas late advice tends to narrow them.
To discuss this, or any other related matter with Andrea directly, please call 01483 887766, email info@hartbrown.co.uk or start a live chat today.
*This is not legal advice; it is intended to provide information of general interest about current legal issues.
