“A couple of years ago, my ex-wife and I divorced, retaining joint parental responsibility for our two children who are 8 and 10. We agreed to share care of the children on an informal basis.  The arrangement was great as we both lived near each other and the children stayed with me three or four nights every week.  We are both in new relationships and although the children really like my partner, I’ve heard a few negative comments from them about my ex-wife’s boyfriend. A couple of weeks ago, she said that she wanted to move back to Madrid where she was born and grew up (and where her parents still live) with the children and her partner who is also Spanish – and I’m absolutely furious. There is no way that I will agree to this. The thought of just seeing the children during the school holidays is unbearable. What can I do?” – John, Beaconsfield.

Claire Filer, family partner, says:

We’re sorry to read this John. We completely understand why you’re feeling this way, considering how involved you are with your children’s lives and that the proposed move, if you agree to it or the court gives your wife permission to relocate with them, is likely to have a significant impact on your relationship with the children.

We would always recommend that you have a discussion with your ex-wife in the first instance to see if you can come to an agreement about what is in the children’s best interests.  Although you have separated it is important that the children see you can make decisions together and it may be that talking things through together provides a solution that you can both live with and you have not contemplated before.   

If you can’t make a decision together, then your ex-wife will have to make an application to court for permission to remove the children permanently from England and Wales.  That is a last resort, but it will be necessary if she still wants to go.  Although the thought of court proceedings is daunting, if you really feel it is not in your children’s best interests to go (for example because of the impact on their relationship with you or other family members, or educational concerns that may not be met in the schools in Spain), you have no choice but to defend the application.  

It is vital to speak to a lawyer who will present your case in the best possible light to the court and help you to shape solid objections as to why your children moving abroad is not in their best interests. This will inevitably change on a case by case basis and will very much depend on what is in the best interests of your children. It is important to have much more detail about what has been happening since you separated and what plans your former wife has in place – since the merits of her application and the thought she has put into it are a vital part of the picture.

The key is to remain focused on the children as this is ultimately what the courts will do.  The judge will want to know about how your children are getting on in school, activities they’re involved in, look at their family situation, and the effect of having less contact with certain family members. It’s also important to note that the children could be interviewed by a court-appointed welfare officer or social worker as well, to get their thoughts.  Thought will also be given as to the alternatives.  For example, will your ex-wife still move if the children stay here and would that be in their best interests? You mention that your children will be closer to their grandparents in Madrid, do they already have a close relationship with your parents or wider family?

If the judge agrees to the children moving to Spain, the court order will usually include details of the times that the children will spend with you and the measures that will be taken to ensure that a good level of contact continues, such as spending time with you at weekends and in the school holidays and remaining in regular contact by email or phone in between. You will then be advised to obtain a “mirror” order in the country that the child is moving to, which we could help with.

If your former wife took your children permanently abroad without your permission, this is regarded as parental child abduction and there are international legal agreements which are designed to enable the return of your children to England as soon as possible, which both the UK and Spain have signed up to. There are concerns about whether this procedure will work as smoothly if there is a “no-deal” Brexit and so it is important that you take advice at the earliest opportunity.  Once the children have returned, your ex-wife would still need to make her application for permission, although this may be affected by her decision to go without having done so in the first place.

Although you’re feeling angry now, it is vital to keep emotions under control when dealing with this situation.  It will no doubt give you some comfort to know that the she cannot move without your involvement and agreement.  Remain focused on the children throughout.

If you’re in a similar situation or would like advice on a family matter, contact Claire Filer by calling 01753 279046 or email familylaw@bpcollins.co.uk

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