Our marriage is over and I want to return to SA with our child, can I just leave?

Q: My husband and I moved from Pretoria to England in 2009 so that he could work for the UK branch of his company. Our son was born here, but 6 months ago we separated. I am lonely living in England on my own without a job and sick of the cold weather here, and I long to be back home with family and friends.  I have a job to go to and my family will pay for our son’s private education.  Do I need the father’s permission in order to leave England and return to South Africa with our child? 

A: Yes.  You and your husband have joint and equal parental responsibility.  That means major decisions in your son’s life (including which country he lives in, which school he goes to etc.) have to be discussed and agreed.  Neither of you can make these decisions on your own.  It is also good parenting to make decisions about a child’s upbringing together.  You must therefore obtain the fathers consent to any proposed relocation.  If you do not or proceed to relocate without his consent, there may be serious consequences.  Your action would amount to child abduction which can result in criminal and civil sanctions.

Q: But what happens if the father refuses to give permission?

A: Then you must obtain permission from the English court to relocate permanently abroad with your child. This is known as making a ‘relocation application’.  They can be quite fraught and stressful. Restricting a parent from returning to their home country or taking up a new job opportunity abroad can be very frustrating and distressing; but conversely a successful application may mean that the left-behind parent’s contact and involvement in their child’s life is dramatically reduced.  Both outcomes are likely to have a negative impact on the child caught in the middle. The court has to make the difficult decision on the best interests of the child.

Q: Will the fact that I am the child’s mother and primary carer go in my favour?

A: Until a few years ago, the English courts have looked favourably upon applications by the parent with primary care of the child as long as they had sensible plans (including well thought out plans to ensure the left behind parent had ongoing contact with the child) and their move was not motivated by malice.  This has recently changed with a greater emphasis on the best interests of the child.  Where the care of a child is shared, with the child spending a good amount of time with each parent, it is less likely permission to relocate will be given.

Q: What do I have to show to succeed in a relocation application?

A: The prospects of successfully obtaining permission to relocate are significantly increased by careful planning and preparation.  You will need to show that you have considered your son’s needs including educational requirements and found a suitable home where you could live and the means to support yourself. You also need to think carefully about generous and workable contact arrangements to ensure your child can continue to enjoy a meaningful relationship with the left-behind parent.  This will include travel costs and may be even travelling back with the child for visits.  Costs of bringing and defending these applications can be very high.

You should seek advice from a specialist family lawyer in the very early stages of planning your move.

Ann Thomas is a Partner and specialist in International Relocation cases at The International Family Law Group LLP — a law firm specialising in international family law matters based in Covent Garden, London. To speak to Ann or her team at The International Family Law Group call 0203 178 5668, email ann.thomas@iflg.uk.com or visit www.iflg.uk.com