Court Of Appeal Clarifies Law On Divorcees Taking Children To Live Abroad

Expert Comments On Important Family Law Ruling

12.07.2011

A recent Court of Appeal decision has helped to clarify the law in cases where one parent wishes to move abroad permanently with the children, a family law expert at Irwin Mitchell has revealed.

The issue is a difficult one which has become increasingly common, with parents looking to start a new life in a new part of the world in order to move on from a tense and fraught relationship breakdown.

Many cases particularly revolve around mothers looking to take children to live abroad and, as a result, indirectly reduce the amount of time that the father gets with the youngsters.

In the case at the Court of Appeal, referred to as MK v CK, the Canadian mother of two children hoped to take them back to her country of birth after separating from her husband. She had lived in England for around eight years and married the father of children in 2004.

They separated in 2010 and put in place an arrangement which meant the care of the children would be shared on an equal basis. Following her application to the court for permission to relocate, the father opposed the move over concerns of reduced involvement with them.

Commenting on the case, Kelvin Henderson, a solicitor and family law specialist at Irwin Mitchell, outlined: “The courts are generally very sympathetic to applications made by mothers, provided they can show that their application is genuine and that the future arrangements for the care, support and education of the children – as well as contact with the father - have been carefully considered.

“However, the mother in this case was refused permission to take the children out of the country when the court agreed with a report by a Cafcass officer, who recommended that permission should be refused because of the effect on the welfare of the children.

“It seems to have been decided that the shared arrangement with the father suited the needs of the youngsters better.”

Kelvin explained that the move ensures the best interests of children are put first and is likely to have implications on similar cases in the future.

He said: “This shows there is no presumption that the mother will be allowed to take the children to live permanently abroad and that each case must be considered on its own individual merits.

“Whilst this decision does not change the law, it clarifies it and makes it less of a foregone conclusion that mothers will be allowed to move abroad with the children in the face of opposition from the father.

“If the father can show that it would be not be in the interests of the welfare of the children to move away then the application should be refused.”