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advice regarding moving overseas

  • frustrated mother
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29 Jan 20 #511237 by frustrated mother
Topic started by frustrated mother
My friend is a single parent to a 5 year old boy. She works in the NHS but is now considering moving to the USA to be closer to her siblings who share a very close relationship with her and her son. She has no family in this country.

When we sat down over coffee to talk about it, I said we were going around in circles as she did not know whether to go to the court first (very acrimonious divorce with ex) or first seek out a visa. The hours on moving would be much better (no unsocial hours) and she would be able to spend more time with her son and be near family which is the primary reason she is considering it. Her ex does not see her son that much pays £9 per week in maintenance and has generally made things very difficult for both my friend and her sweet little boy. While I would be sad if she went, I want them to be happy however not fall afoul of the law.
all suggestions and advice gratefully received.

My questions are
1. Should she go to court first rather than apply for her visa or greencard?
2. she is hesitant to accept a job offer/go through the visa process as apprehensive about going to court.

  • rubytuesday
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30 Jan 20 #511243 by rubytuesday
Reply from rubytuesday

If your friend can get consent from the other parent to relocate, she wouldn't need to apply to court. If he refuses, then she would need to make an application for a Specific issue Order - often an application of this nature is known as Leave to Remove. The consent of the other parent or leave from the court isn't required for her to move away, but for her take the child out of the jurisdiction of the United Kingdom.

If she does apply to court, your friend would need to show that there is definite employment available to her should she relocate. I usually advise those wishing to relocate to put together a "relocation package" which sets out the criteria below in relation to relocating with a child; this will give the other parent something concrete to consider, and may provide reassurances to him that this is not an attempt by your friend to cut contact. If he still doesn't consent, then she can use the relocation package as part of your position statement in court proceedings.

Leave to Remove (LTR) proceedings may take around 6 months - or longer. A child's ages will taken into consideration, and their wishes will also be considered by the Court.

Your friend needs to do her research thoroughly, put together her arguments for moving - and why this relocation is in their child''s best interests - keep absolutely everything child-focused; allow the other parent some time to digest the proposal (and expect him to lash out and be difficult because the chances are he will - and probably refuse consent). She can then use her arguments - which will include a very comprehensive parenting time plan and how she will encourage and facilitate their child's relationship with the child's father - as part of the application for leave to remove.

The application is made for a Specific Issues Order under Section 8 of the Children Act or under Section 13 and is made using Form C100 and she will have to pay a fee of £215. In contrast to contact applications, there is no requirement to seek mediation.

An LRT case involves overriding the parental responsibility of the respondent parent and the applicant therefore has to show why the Court should do this. The overruling principle is that if the proposed move is ‘reasonable’, for the respondent to withhold consent is ‘unreasonable’ and leave to remove should only be refused if it can clearly be shown that the child’s interests are incompatible with those of the resident, applicant, parent. Incompatibility of interests will depend on two questions:

1. The effect of removal on the child’s relationships with those left behind (this includes paternal family not just Dad)

2. Conditions in the host country.

Your friend need to assemble her arguments carefully, following the above guidance - and remember, she will need to demonstrate that the move abroad is in their child's best interests (or that remaining in this country isn't) - it's not about her or her wishes because there is nothing to stop your friend yourself from moving abroad without her child - the application and arguments must be child-focused at all times.

There are 8 criteria that the Court requires to be satisfied when considering an application for LTR.

1. The welfare of the child is always paramount, so all aspects of the welfare checklist must be considered, and the child be given the opportunity to express his feelings.

Your friend's guide throughout must be the paramountcy principle and the elements of the welfare checklist.

She must show that the benefits of removing the child from the jurisdiction outweigh any damage caused by moving their child away from teachers, friends, other relatives, and, of course, the other parent.

She must show that their child fully understands all the implications of the move and has been given the opportunity to express his views and hasn’t been bullied.

2. There is no presumption created by s.13(1)(b) in favour of the applicant parent.

Simply because a parent has residence does not give them an automatic right to remove the child from the jurisdiction; they would still have to prove your case.

3. The proposals for relocation must be practical and include measures for ensuring continued adequate contact with the other parent.

Your friend must show she has considered all the implications of removal from the jurisdiction fully, including:

a) Proposals for the child’s living arrangements.

b) Arrangements for the child to remain in contact with the other parent. How will they travel? Where will they stay? Who will pay for this?

c) Arrangements for supplying the child’s financial needs.

d) Finalised arrangements for the child’s education – is there a firm offer of a school place? Is this the right place for the child? Is the child at a point in her education where a move will be disruptive? Did she involve the other parent in the decision? Were they consulted on alternatives? Has she sent them full details of the school including prospectus and syllabus?

e) Is the child involved in other activities – sporting or artistic, for example – which will be disrupted? Will she be able to continue these? What about sports teams, drama societies, orchestras, etc.?

f) Can the child speak the language of the new country? What measures will be taken to ensure she learns?

g) Has she registered the child with a doctor, dentist, optician, etc. Does your child have any special health needs? What medical insurance will be provided for the child?

h) An account of her reasons for wishing to move abroad – family, marriage, job, etc.

i) Evidence of the financial viability of the plan, including firm job offers.

j) Evidence of the accommodation, including address, pictures and estate agent’s particulars.

k) Evidence of links to the new country – family, etc.

l) Evidence of social opportunities and network.

m) Evidence that Court Orders made in the UK will be recognised and enforced in the new country.

n) Expert evidence of the psychological and developmental effects of removal on the child.

4. Consequently, the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

5. The Court must consider the effect upon the applicant parent and the new family of the child of a refusal of leave.

She must show that a refusal of her application will impact psychologically on herself and her parenting ability. Show how it will damage your career prospects and financial status. Show that it will affect members of her extended family, etc.

6. The Court must consider the effect upon the child of the denial of contact with the other parent and in some cases his wider family.

Ideally you need to show that contact between the child and the other parent has broken down and that the other parent is no longer involved.

7. The Court must consider the arrangements for ensuring continuing contact between the child and the remaining parent.

She must show detailed, costed arrangements for continuing contact both with the ‘left behind’ parent and with the extended family. They must be practical and affordable.

Your friend is welcome to call the helpline if she has any questions.

Hope this helps

  • frustrated mother
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02 Feb 20 #511273 by frustrated mother
Reply from frustrated mother
Dear Ruby,

thanks so much for the detailed response which I have passed on. She has said that her ex will not consent on his own not because of his interest in their son but more because of his control issues.
A query that she has asked is should she go through all the expense of applying for a visa/green card, getting her son into a school and renting an apartment and then applying to court or should she make all the provisional plans and apply to court and then go through the whole process. She is very worried about falling afoul of the court.

Many thanks in advance

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