Martha wishes to relocate back to the United States with her children. What can Martha do and what rights does their father, Fred, have?
Fred and Marta divorced about two years ago. They have two children who live with Martha and have contact to Fred every other weekend and during holidays. The family lives in England but Martha is originally from the United States and Fred is British. The children have dual nationality Following the breakdown of the relationship Martha wishes to return to her home country and for the children to come with her.
It is important for Fred and Martha to consider the following points with their own separate legal advice:
- The children are habitually resident in England & Wales. This basically means where they live and belong day to day. Any decision concerning the children’s welfare needs to be decided by an English Court in the absence of an agreement between the parents.
- Both parents have parental responsibility for the children which gives each of them legal rights, duties and responsibilities.
- Martha should not remove the children from England & Wales without Fred’s consent or the permission of an English Court. If she does, this may amount to parental child abduction.
- If Fred does not consent, Martha plans for the proposed relocation to the US will need to be well thought out and in the best interests of the children. Martha would need to look at the practical arrangements too, for example, where they would live, the schools, the local facilities and amenities, how she would be able support the children and so on.
- Fred will, of course, say that the impact of the relocation to the US will mean that the children will be uprooted from their friends, family and school. Importantly, the contact the children presently enjoy to their father will be substantially reduced as he will be left behind. A judge is then left with making a very difficult decision.
- Even if Fred does agree to the relocation to the US, the international contact arrangements will need to be carefully considered. The contact should be as frequent as it can during holiday periods and the parents may which to discuss who is the travel with the children if necessary and how the cost of this is to be shared. In some cases it might be a good idea to have an order in the US Court to record the English Order in terms of relocation and contact so it is capable of recognition and enforcement. This might reassure Fred and the English judge that the contact arrangements will be complied with once the children have left the country.