Regardless of the recent development’s in UK politics, the reality is that there are still a large amount of families that have connections overseas. Statistics show that in 2017, in England and Wales, 28.7% of babies had mothers who were born outside the UK. In cases of divorce and separation of the parents, there are several questions that remain to be answered regarding the custody of their child, including who will have custody, whether this will be shared etc.
Backtracking on the rights of parents within the European Union, all member countries recognise the rights of children to have a personal relationship and direct contact with both parents, even if they live in different countries. However, the rules of custody mentioned above change depending on the country. In the UK, mothers have automatic parental responsibility for her child from birth, whilst a father has responsibility either if he is married to the child’s mother or he is listed on the child’s birth certificate.
Given that both parents have responsibility, permission is required from one parents to the other to move the child overseas, and if that cannot be obtained, then they could seek the courts permission to relocate. The other parent could seek a Prohibited Steps Order to prevent the relocation, but ultimately if the partner that decided to relocate already has a Child Arrangement Order in their favour, then they every right to relocate, including outside the UK.
It is important to note that in most of these cases the child/children’s welfare is the main concern. It is rare for courts to grant a Prohibited Steps Order or even Child Arrangements Order in favour of the remaining parent unless they can prove that it is in the child’s best interest. However, the case of Re F (Children) (International Relocation) , a 19 hour journey to see the father for 4 children was deemed to be too complicated and tiring for the children, and the court decided to grant the Prohibited Steps Order in favour of the father.
Therefore, the situation becomes complicated when the parents come to an agreement for visiting and custody rights but one of the parents wants to/has to relocate. Both the wishes of the parents are equally important, but at the end of the day the final decision often weights on the needs of the child. Nonetheless, this is still an area controlled by EU Law and it will be interesting to see what progress this area of law will make following the UK leaving the Union at the end of October, and what that will mean for families of European citizens.
Written by Edda Pernice, work experience. Sources:
1. Bright, M. (n.d.). Special Guardianship Orders and Overseas Placements. Family Law Week. Available at: https://www.familylawweek.co.uk/site.aspx?i=ed201890
2. Your Europe – Citizens. (2019). Parental responsibility. [online] Available at: https://europa.eu/youreurope/citizens/family/children/parental-responsibility/index_en.htm
3. GOV.UK. (2019). Parental rights and responsibilities. [online] Available at: https://www.gov.uk/parental-rights-responsibilities/who-has-parental-responsibility
4. Porter, J., Sharp, R., Clarke, J. (2019). Does a parent need permission to relocate with a child? | Lester Aldridge. [online] Lester Aldridge. Available at: https://www.lesteraldridge.com/blog/family/does-a-parent-need-permission-to-relocate-with-a-child/