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Sarah Lucy Cooper  in London, England
Thomas More Chambers of Barristers  on 2013-05-01

Can My Child Return to Latin America After Separation in the UK?

This is the second article for readers of Latinos in London dealing with family law as it may affect them. I am specialist family lawyer dealing with lots of Latino clients in my work as a family law barrister practising from Thomas More Chambers.

This month I am dealing with whether you can take your child back home if you have been living here and have separated from your partner.

It is vital to remember that what is important as a matter of law in these cases is where the child has been living. It is this which will decide which court makes the decisions. If the child has been living in the UK, it will be a UK court which makes decisions about its life, regardless of where the child was born or what its nationality may be.

Courts all over the world view child abduction very poorly and will condemn parties who engage in such practices. As a matter of criminal law the Child Abduction Act 1984 makes it a criminal offence for a person to take a child out of the UK without the appropriate consents, so it is particularly important to ensure that in the absence of a written agreement by the parents and anyone else with whom the child lives or who has parental responsibility for the child, that an application is made to the court in the UK. Section 13 Children’s Act 1989 makes it absolutely clear that even a person with a residence order in their favour cannot decide on their own to take a child to live abroad.

Further information on child abduction and how to prevent it can be found on the Reunite website

It is not easy to take a child to live overseas if the child’s relationship with the other parent or other family is likely to be disrupted. English courts consider that it is the right of the child to have a full relationship with both parents if at all possible. This is the most important issue in most cases – the practicalities of contact when the child no longer lives in the UK. English courts will always do their best to protect the welfare of the child.

The leading case which sets out how a court will decide whether a child can live overseas is that of Payne v Payne [2001] EWCA Civ 166.

The application will be made on a C100 form and you will need to prepare a very full statement with lots of documents backing up your case. You must deal head on with the full history, fully explain the proposed move including practicalities and motivation, and explain what will happen to contact and what the effect of a refusal to allow you to return home will be. The statement should include:

(i) accommodation – photos and costing in UK and overseas

(ii) schooling – brochures, term dates, photos, costing, which languages being taught, comparison with English schools, detailed description of research into new schools – visits etc

(iii) detailed proposals for contact – how often will the child spend time with the other parent? Speak to them on the phone/Skype?

(iv) costs of travel to and from contact - including accommodation costs during contact in UK and abroad and how long travel will take

(v) immigration issues – do you and the child have the right to live abroad? Can the other parent visit?

(vi) enforcement of contact – can the other parent ensure that contact will continue in the country

(vii) childcare- who will carry out? Comparison with existing arrangement

(viii) employment - wages

(ix) language issues

(x) health care

(xi) details of any new partner including an explanation of why he/she will not relocate

(xii) emotional effect of any refusal of permission – may involve disclosure of medical records if history of depression etc

When an application is made to a court in England and Wales, there will be a few hearings, the first of which will be procedural when the judge will consider what evidence will be necessary – will there need to be expert overseas legal evidence? psychological evidence? Who will giving evidence and will there need to be video links set up?

A Cafcass officer will also be appointed. Cafcass have a background in social work and will be asked by the judge to provide a report with recommendations which a judge will take into account. The Cafcass officer will meet with both parents, teachers etc .

A full hearing lasting a number of days will then take place and a decision will be made by a judge as to whether you can indeed relocate back to your home country. Please remember that everyone’s circumstances are different and this article can only provide an overview and is no substitute for specific legal advice.

Over the coming weeks I am going to deal with the following in more detail – 

How do English Courts deal with division of money on divorce?

I am not married. What are my rights?

Can I take my child back home?

Can I enforce my order in my divorce case between countries?

Can I ask for more money in England after getting divorced abroad?

I got married abroad – does this affect the financial division?

If there any other issues you would like me to deal with, please feel free to email me at Please remember that nothing in these articles is intended to replace specific legal advice.

Sarah Lucy Cooper

Family Barrister and Mediator
Thomas More Chambers

About the writer

I am a specialist family lawyer and in the next few months I shall be dealing with some of the most important issues affecting Latinos who are divorcing or separating here in London. I have lived in Colombia and speak fluent Spanish as a result of which I have had a lot of experience with Latino clients and their particular needs.

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