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Imagine the scene - a young French woman, Monique, in her
20s has now just got over her recent divorce from her English
ex-husband, Simon. She is thinking of returning home to live in
France with their child, Isabelle, to be near her friends and
family once again. She feels England holds nothing further for her
now and is lonely and unhappy. No problem, you might think. Think
again. If Simon does not consent to her going with Isabelle, she
has a legal battle on her hands.
Consider scenario two - Amy was divorced from her
ex-husband George a couple of years ago. She looks after their two
children, Matthew and Rebecca. She has now saved up enough money
and fancies a summer holiday with the children in the French
Riviera. Again, apparently no problem. However, if George does not
give his consent to her taking the children abroad, she again faces
a legal battle.
Turning to the first of the two scenarios above, what is the
legal position and what is Monique to do?
The legal position is that where both parents share 'parental
responsibility' for their child, neither of them can remove the
child from the country permanently unless they obtain the other
parent's consent or the court's permission. 'Parental
responsibility' means the rights and responsibilities relating to
the child, and mothers, married or unmarried, always have it.
Fathers who are or have been married to the mother also have
'parental responsibility', but unmarried fathers do not
automatically have it. As Monique was married to Simon she
definitely needs his consent.
If Simon refuses to consent, however, Monique will have to
persuade the court to give her their permission. Alternatively, she
could stay put or go anyway but then she would be committing the
criminal offence of child abduction and risks being prosecuted. To
obtain the court's permission she will need sufficiently to prove
to the court that her desire to move is genuine and not motivated
by a selfish desire to exclude Simon from Isabelle's life. It will
be a good idea if she can show her commitment to promoting as much
ongoing contact as is possible. She must also demonstrate that she
has thought through all of the practical considerations, such as
where she and Isabelle are going to live, schooling, finances etc.
If she fails to demonstrate either of these her application will
fail.
If she passes these hurdles, though, the court must then look at
Simon's reasons for opposing the move. Is it motivated by a genuine
concern for Isabelle's welfare or does he have an ulterior motive?
What would be the impact of the move on his relationship with
Isabelle and their future relationship? The court must also
consider the impact of any refusal on Monique and how the impact it
has on her might affect Isabelle.
Overall, the court will regard Isabelle's welfare and best
interests as their paramount consideration and will consider the
following points, known as the welfare checklist:
- Isabelle's wishes and feelings
- her needs
- the likely effect on her of any change in circumstances
- her age, sex, background and any other relevant
characteristics
- any harm she has suffered or is at risk of suffering
- how capable each of her parents, and any other relevant person,
is of meeting her needs
The court can appoint a CAFCASS (Children And Family Court
Advisory Support Service) officer to report on the above
matters.
Recent cases suggest that if Monique can show the move to France
is genuinely motivated and well thought out, and that she is
willing to promote contact between Isabelle and Simon, the court is
likely to grant her request.
What about Amy? What does the law say about going abroad on
holiday? Again, where both parents share 'parental responsibility',
as do Amy and George, neither parent can take the children out of
the country without the other's consent or the court's permission.
If Amy has a residence order in her favour, which would mean that
the court has ordered that the children live with her, then she can
take them abroad for up to one month without George's consent. If
Amy does not have a residence order in her favour, and George
refuses to consent, but she cannot resist the temptations of the
French Riviera and decides to take the children away anyway, she
risks being stopped at the airport and technically will have
committed the offence of child abduction.
Amy would need to make an application to the court for
permission to go on holiday and she would need to demonstrate that
it is in Matthew and Rebecca's best interests to go. It is usually
in the children's best interests to go on a holiday such as Amy is
planning, and the court would be likely to grant her request unless
there are concerns that she will fail to return them or George can
substantiate any other welfare concerns.
With many people every year emigrating to France and thousands
going on holiday to France each year, a significant proportion of
which presumably have children, the above points are worth bearing
in mind. In most cases, however, this is not an issue as parents
are either still together or, even once separated, can agree
matters between them when it comes to the children. However, when
it comes to moving to France, or any other country on a permanent
basis, understandably there is likely to be more of a dispute.
Sarah
Wright is a solicitor in the Family team at Blake Lapthorn in
Winchester and can be contacted on 01962 844440.
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