Q. I have separated from my partner and the father of our 10 year old son. I wish to return to live and work near my family in Ireland. What do I need to do?
A. Suzy Hamshaw, family lawyer at Charles Lucas & Marshall
The first question to consider is whether your son’s father has parental responsibility for him. If you were married, entered into a parental responsibility agreement or if there is a Court order for parental responsibility then he will have parental responsibility. His name being on the birth certificate will not be enough as your son was born before 2003.
Any decision to emigrate or ‘remove a child permanently from the jurisdiction’ should be made jointly by those with parental responsibility and in any event your son’s father’s consent should be sought. If he agrees then it would be sensible to record that consent in writing before making arrangements. If he does not agree and you wish to go ahead with the planned move then, assuming he has parental responsibility, you will need to consider making an application to the Court under The Children Act 1989 for leave to permanently remove your son from the jurisdiction of England and Wales.
Your partner may also choose to make an application for a prohibited steps order to prevent you from removing your son and possibly a residence order should he wish for your son to live with him in the event of you moving.
If residence is in dispute the Court will deal with this aspect first and the approach will differ to a situation where you are the clear primary carer. In all cases the Court will give paramount consideration to your son’s welfare. The Court will also give consideration to the whole of the period of your son’s dependence and not just the immediate future.
The Court will consider the reason for the application and your desire to emigrate. A move for compelling reasons such as employment, family etc may be viewed differently to one simply made as a ‘lifestyle’ choice. The reasonableness of the proposed move must be considered alongside the effect of the application being refused.
The circumstances of the proposed move will also be considered such as living conditions and financial implications and as your son is 10 years old the Court is likely to give significant weight to his wishes and feelings.
The effect of the proposed move on your son’s contact with his father will be important as will be the impact on their relationship. In this respect much might depend on the arrangements for residence and contact you currently have and to what extent you share the care of your son.
Applications to the Court of this nature can be costly and complex and need to be thoroughly and properly thought through and prepared. In any situation, before Court proceedings are contemplated, it is always sensible to consider other ways in which you might try to reach agreement such as attending mediation or by using collaborative law.
For further information contact Suzy Hamshaw at Charles Lucas & Marshall’s Newbury office on 01635 521212 or at the Hungerford office on 01488 682506 or e-mail her at firstname.lastname@example.org