Moving Abroad with a Child After a Separation

At McCarthy + Co, our family law solicitors often meet parents who, following a separation, are considering starting a new life abroad with their child. One of the most common reasons we encounter is a wish to return to the country the parent is originally from, in order to be closer to parents, siblings, and wider family who can offer practical and emotional support during what is often a difficult period. Other parents may have a job offer, a new relationship, or simply the prospect of a better standard of living in mind.

Whatever the motivation, relocating internationally with a child is not a decision that can be taken by one parent alone. Where the other parent is a guardian of the child, their consent, or the permission of the court, will almost always be required. Proceeding without it can have very serious legal consequences, including allegations of child abduction under the Hague Convention.

This guide sets out the key legal considerations, the factors the court takes into account, and the practical steps involved in making, or responding to, a relocation application.

Why guardianship matters

The starting point in any relocation case is guardianship. Guardianship gives a parent the legal right to make major decisions about a child’s upbringing, including decisions about education, medical treatment, religion, and, crucially, where the child lives.

Under Irish law, a mother is automatically a guardian of her child. A father is automatically a guardian if he is married to the mother, either at the time of the child’s birth or subsequently. An unmarried father will be an automatic guardian if he has lived with the child’s mother for a continuous period of at least twelve months, including at least three months with the mother and child after the birth, in line with the Children and Family Relationships Act 2015. In other cases, an unmarried father can become a guardian by agreement with the mother (by way of statutory declaration) or by order of the court.

Where both parents are guardians, one parent cannot lawfully remove the child from the jurisdiction on a long-term basis without either the consent of the other guardian or an order of the court.

The legal framework for relocation in Ireland

The principal legislation governing relocation decisions is the Guardianship of Infants Act 1964, as amended by the Children and Family Relationships Act 2015. Under section 11 of the 1964 Act, a guardian of the child can apply to the court for a direction on any question affecting the welfare of the child, including where the child is to live. An unmarried parent who is not a guardian can also apply to court regarding custody and access.

Section 3 of the Act makes clear that the best interests of the child must be the paramount consideration for the court in any such application. This is also reinforced by Article 42A of the Constitution, which guarantees that the best interests of the child shall be the paramount consideration in proceedings concerning a child’s welfare.

In cases involving another EU Member State, the Brussels IIter Regulation (EU Regulation 2019/1111) also applies, and governs issues such as jurisdiction and the recognition and enforcement of orders relating to children across EU borders.

Trying to reach agreement first

We often advise clients to explore every reasonable avenue to reach agreement with the other parent before considering a court application. An agreed approach is almost always quicker, less expensive, and less stressful for everyone, particularly for the child.

Where agreement is reached, it must be properly documented. Any agreement relating to relocation should be set out in writing, ideally as part of a consent order made by the court. That way, the arrangements regarding access, holiday contact, travel costs, and decision-making are all clear and can be registered and enforced in the new country where necessary.

Mediation can be very helpful in reaching agreement. A trained mediator can help both parents focus on practical arrangements and on the needs of the child, rather than on the difficulties of the adult relationship.

Applying to court for permission to relocate

If agreement cannot be reached, the parent wishing to relocate can apply to the court under section 11 of the 1964 Act for a direction permitting the move. Depending on the circumstances, this application may be brought in the District Court, the Circuit Court, or the High Court. Where divorce, judicial separation, or other family law proceedings are already under way, the relocation issue is often dealt with within those proceedings.

The application should be fully prepared and supported by clear evidence. Our experience is that the courts expect a parent seeking to relocate to have thought carefully about the practicalities and to be able to demonstrate that the move has been properly planned, rather than being a reaction to the breakdown of the relationship.

How the court decides

The court’s decision will be based on what is in the best interests of the child. Section 31 of the 1964 Act sets out a wide range of factors to which the court must have regard, and in a relocation case, the most relevant of those factors include:

• The benefit to the child of having a meaningful relationship with each parent – The court will carefully consider how the move will affect the child’s relationship with the parent staying behind, and what proposals are being made to preserve that relationship.
• The views of the child – Depending on the age and maturity of the child, the court will take the child’s wishes and feelings into account. In some cases, the court may appoint an expert to assess and report on the child’s views.
• The physical, psychological, and emotional needs of the child – Including stability, routine, and continuity of care.
• The history of the child’s upbringing and care – Including each parent’s role to date.
• The child’s religious, spiritual, cultural, and linguistic upbringing and needs – Which can be particularly relevant where one parent is originally from another country.
• The child’s social, intellectual, and educational needs – Including the schooling, healthcare, and support that will be available in the new country.
• The proposals for the child’s future care and upbringing – Including housing, employment, and family support in the new country.
• The willingness of each parent to facilitate the child’s relationship with the other parent – A parent whose proposals appear designed to reduce the other parent’s role in the child’s life is likely to find the court less sympathetic.
• Any history of family violence or risk to the child – Which will always weigh heavily in the court’s assessment.

The court will also consider the practical realities of the proposed move, including the motivation behind it, the support network available in the destination country, how realistic the travel arrangements for the remaining parent are, and whether any orders made in Ireland can be recognised and enforced in the new jurisdiction.

Practical matters to think about before applying

A well-prepared relocation application deals not just with the legal test, but also with the practicalities of life in the new country. The court will expect to see that the parent has considered:

• Where the child will live, and the suitability of that accommodation.
• Which school the child will attend, and how the child’s education will be supported.
• What healthcare arrangements will be in place.
• What work or income the relocating parent will have.
• What family or social support network is available locally.
• How the child will maintain a meaningful relationship with the parent remaining in Ireland, including practical proposals for visits, holidays, and video contact.
• How the costs of travel for contact will be met.

Where the move is to a non-EU country, particular thought should be given to whether any Irish order will be recognised and enforced in the destination country, and what steps may be needed locally to mirror the arrangements there.

Responding to a proposed relocation

If you are the parent being asked to agree to a relocation, or if you have learned that the other parent is planning to move abroad with your child, it is very important to take early legal advice. You may be able to apply to the court for orders to prevent the removal of the child from the jurisdiction pending a full hearing, including an order under section 11 of the 1964 Act. In urgent cases, orders can also be sought to stop a child being taken out of the country and, in some circumstances, to prevent the issuing of a passport.

Doing nothing is rarely the right approach. If the child is removed from Ireland before the issue is addressed, the legal position can become significantly more complex, and any dispute may then have to be resolved under the Hague Convention or the Brussels IIter Regulation rather than in the Irish family courts.

Travel, passports, and short trips abroad

It is also worth remembering that the rules on consent do not only apply to permanent relocations. Where both parents are guardians, the consent of each guardian is, in principle, required for a child to travel abroad, even for a holiday, and is also required for the issue or renewal of the child’s Irish passport. Where consent is refused or cannot be obtained, an application can be made to the District Court for an order dispensing with that consent.

Relocating without consent

We cannot stress enough the importance of not removing a child from Ireland without the necessary consent or a court order. Ireland is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and within the EU the Brussels IIter Regulation also applies. The wrongful removal or retention of a child from their country of habitual residence can result in an order requiring the immediate return of the child, regardless of how well-intentioned the move may have been.

An unauthorised relocation can also have a very damaging effect on any subsequent application for permission to relocate, and on wider custody and access issues.

Require assistance with a legal matter relating to your child?

Moving abroad with a child after a separation is one of the most sensitive and consequential issues in family law. Whether you are considering a move yourself or you are concerned about a proposed move by the other parent, early legal advice is essential.

The team at McCarthy + Co Solicitors LLP can guide you through every stage of the process, from initial negotiations and mediation, through to a full court application where needed. We can help you understand your rights, prepare a strong application or response, and put in place arrangements that protect your child’s welfare and your relationship with them, into the future. Arrange a consultation with a solicitor here using our confidential online form.