Top Trumps: a guide to international relocation in times of political instability

Following the USA’s presidential election many individuals are reportedly looking to relocate their families and businesses to other jurisdictions. Amongst those rumoured to be making the move are Cher, Barbara Streisand and Whoopi Goldberg. Similarly, following tax measures announced in the UK Autumn Budget, many (U)HNW individuals have stated their intention to leave the UK for warmer (and less taxing) climes.  

Political change is just one reason for individuals to relocate internationally. However, for separated families with children, relocation is rarely straightforward - whatever the reason. 

Leaving England

In England and Wales, the starting point is that all those with ‘parental responsibility’ for a child (usually but not always the parents) must consent to an international relocation. 

If one parent takes the children to another jurisdiction without such consent, they will likely be deemed to have committed the criminal offence of child abduction under s1 of the Child Abduction Act 1984. Moreover, there are a number of international treaties (namely the 1980 Hague Convention on the Civil Aspects of International Aspects of Child Abduction) designed to facilitate the swift return of a child to their home country should this happen, albeit not all countries have ratified such conventions. 

If one parent wishes to relocate with a child but the other does not agree then they will need to ask the court for ‘leave to remove’ – i.e. permission to take the child to live in another jurisdiction. The court will look at all the circumstances of the case and make a decision that is in the best welfare interests of the child. Welfare is a broad concept and these cases are incredibly fact specific. A mother and child fleeing a violently abusive father to return to their home country where the rest of the maternal family live and where the child speaks the native language may stand a strong chance of being granted leave. A parent moving to a country they have never lived in before purely to benefit from lower tax rates, and who wishes to take their child with them, is perhaps less likely to receive the permission of the court. 

A successful application will normally require a positive welfare case for the new jurisdiction (i.e. a “pull” factor, not just a “push”) as well as a considered plan for what the child’s new life will look like, usually to include how they will preserve and maintain their relationship with the parent who remains in England. Specialist legal advice at the outset is essential.

Moving to England

If a parent wishes to move to England with their child then it will be a matter for the law of their home jurisdiction as to what permission is required. 

Most jurisdictions (including the USA) operate a similar model to England and Wales – i.e. parental consent is typically required for a relocation without which the permission of the court is needed. However, that is not always the case – for example an unmarried mother in Turkey with custody of a child can relocate with no requirement for consent or leave. 

Even where leave is required, courts in different jurisdictions apply different tests and take different approaches to this issue. As you would expect, most jurisdictions operate legal tests with reference to child welfare and/or the prevention of harm. However, the approach and outcome can vary quite significantly in practice. In some countries (such as Belgium, Denmark and Spain), it is said to be comparatively difficult to convince a court to permit international relocation. In others (such as Greece and Japan), it is said to be much easier provided the parent is the ‘primary carer’ (usually the mother). 

England has ratified the 1980 Hague Convention, so if a child is brought to England from another ratifying state without the necessary consent or leave (as determined by their home state) then the English court will order the return of the child unless one of the limited exceptions applies (e.g. if a return would expose the child to a grave risk of harm). There are also other legal avenues via which the English court might decide it is not appropriate for a child brought to England to remain here, which a ‘left behind’ parent may seek to invoke. 

Conclusions

The international movement of children is a complex and high stakes area of law, of which unadvised parents can easily fall foul (often with extremely serious results). Careful planning and early legal advice (sometimes in multiple jurisdictions) are essential.