Q&A - I heard my ex-wife is planning to emigrate with our son. What should I do?

13/08/2012

Q:  I believe my ex-wife is planning to emigrate to South Africa with her new partner and our twelve year old son. She has not discussed it with me, even though we both have parental responsibility. What should I do?

A:  You should seek legal advice as soon as possible. As you both have parental responsibility your ex-wife would need your permission to take your son abroad for more than 28 days, even if she has a Residence Order.  If she were to take him abroad for longer than 28 days without your permission she would be breaking the law.

Unless you agree to your son emigrating or going abroad for an extended period your ex-wife will need to obtain a Court Order. Even if you do agree an Order will be needed if there is a Residence Order in place.

Where Court approval is required the Court will look at the motives behind the emigration plans and consider whether your wife has fully thought them through. By applying the Welfare Checklist the Court will also look at the likely impact such a move would have on your son. This would include his ascertainable wishes and feelings based on his age and understanding; his physical, emotional and educational needs; the likely effect of any change in his circumstances; any potential harm he may suffer and how capable those people whom the Court considers to be relevant are of meeting his needs. The Court will also consider the impact on the resident parent of any refusal, on the basis that this is also likely to impact on the child. An important part of the Court decision will be the relationship the child currently has with the non-resident parent and how contact between that parent and the child can be facilitated in the future.

Nathan Wright

Nathan Wright

Partner

A Partner specialising in Family and Matrimonial Law

Alison Peters

Alison Peters

Partner

A Partner in our Family and Matrimonial department in Oswestry