In the third episode of the series, Joanne Major hears from "Kate" about her experience of moving to Spain with her new partner and the complications of going to court when her ex-husband tried to stop her taking the children.

Joanne talks to children specialist Sam Carter from Major Family Law about how detailed preparation can make all the difference when a case comes on front of a judge.

Finally Joanne chats to Spanish children law specialist Jose Maria del Rio Villo in Marbella who deals with couples separating and then wanting to take the children back to the UK...and has a warning for anyone thinking about doing this: plan well and ask for advice.

Joanne 0:15

Hello and welcome to this latest edition of splitting up dot pod, where we hear how people facing seemingly unsurmountable challenges while going through a separation have actually made it to the other side.

Joanne 0:28

I'm Joanne Major, a family lawyer in the North East of England and the creator of the website SplittingUp.com and of course, this podcast.

Joanne 0:40

Of course everybody’s situation is different and although our podcast is intended to be helpfully informative and thought-provoking it cannot be legal advice – for more information on this all important disclaimer please go to the website’s podcast page.

Joanne 0:59

Today we're heading to Spain to hear a story about how to deal with a big move and what happens when a former partner wants one thing for the children when you want another. International moves can strain compromise to breaking point and often end up in court.

Joanne 1:18

I'm going to be speaking today to Family Lawyer Sam Carter of Major Family Law, and also Spanish family lawyer Jose Maria Del Rio about the specific challenges of preparing for court in an international case. But first, let's hear Kate's story.

Joanne 1:44

As you'll hear, Kate made the decision to move to Spain after her new husband got a job in Gibraltar. After her ex blocked the move, Kate had to work hard with Sam Carter to build a strong case to take her two boys with her to Spain. Last episode we heard about CAFCASS - the Children and Family Court Advisory and Support Service - here the court ordered CAFCASS to prepare a welfare report in Kate's case, which involved meeting the children. CAFCASS didn't support Kate's case, saying that it would be better if the boys remained in the United Kingdom, but amid the restrictions of COVID and the complications of Brexit, she battled hard.

Kate 2:30

Hello, my name is Kate. The process was to move to Spain with my two sons and my husband. We wanted to move to the Costa Sol so that could start a new life. My husband had a job in Gibraltar, which was 25 minutes away, just over the border. My sons are school age, the problem was that my ex-husband didn't agree for the boys to move to Spain.

Kate 3:00

There were a number of problems because obviously it was during COVID time as well. I did try mediation at the beginning but my ex-husband refused point blank to go to mediation and did want the process through court. Basically he just was: "Hell will freeze over before you take the children away." He didn't know about the school enough. I had already been dealing with all the school and not him, so the basic everyday parenting was done by me. But he was adamant that the schooling wouldn't be adequate. He was worried about not seeing the boys although he'd only seen them one night every fortnight, so obviously we then had to arrange for how often he would be able to see them. And every solution was another problem. It just went on and on and on, basically. Every time I came with a solution that was something else. He just fought us till the bitter end. He didn't want them to go and that was his stand on it - with no compromise at all.

Kate 4:17

It was very complicated. The children had to have face to face interviews rather than be over the phone. My ex-husband insisted on that. We had everything ready. When we went on we were ready: we had the file we had everything there. Everything was so smooth and detailed from opticians to doctors, to dentists to schooling to jobs, to Social Security, to selling our houses - basically every single criteria to make sure that we had everything ready for when we went to court. And thanks to Sam - he did, he bent over backwards and the background work was definitely donwn to Sam. But when the CAFCASS lady was saying that they didn't think that it was the best time for the boys to move because of COVID at the time. So that was a major complication.

Kate 5:17

She'd interviewed both boys and both boys were happy to move and their teacher was for us, the headmistress was for us, but she'd come up with a decision that she didn't think it was a good move, specifically because of COVID. And then when went to court, we weren't 100% sure. All the way through, it was kind of like 50/50 because of her decision, but in the end the judge said, basically, it wasn't just COVID it was Brexit as well, and if we didn't move, when we planned to, we would have missed the Brexit deadline. My husband had a job waiting for him that had been put on stall for, by this time, about 10 months. As is drew nearer the judge obviously decided that because of Brexit it's a necessity that they go now and they don't wait, because if they wait they won't be able to go. It's just all come together.

Kate 6:09

The boys, they're just better than I ever expected. The relationship is fine, probably exactly the same as they were in the UK, but the only difference is now when they go back it's more quality time. They go on the PlayStation, the Xbox with him all the time; they got phones as soon as they got to Spain so they phone him regularly. It's not as easy now Brexit - you know, there's a lot more complications then what we had to go through and we had enough. But it's worth it. It's a lovely life and it's worth it - it's worth every penny to us. The boys out here are absolutely just having the best life. It's just worked out so, so well.

Joanne 6:55

I'm so pleased it's worked out for you, Kate. And it's great to hear that the children have learned to speak Spanish on a settling so well into Spain, while still keeping that connection with their father. Thanks so much for sharing your story with us. And there's a lot in there, which we can now speak to Sam Carter about. Sam, you were obviously the lawyer on this case. And I know Kate really appreciated the help that you gave her. These can be incredibly emotive cases, can't they? And there's always often really a winner and a loser.

Sam Carter 7:25

Hello, Joanne. Yes, these are very difficult decisions in these cases. I would say it is probably the most difficult decision that a family law judge in private children law proceedings is asked to make. I think it's really important that there is understanding of both your own client's position as well as the position of the other parent. I represent both the relocating parents and the left behind parents and emotions understandably, are very high. Generally, there will be a reason for the relocating parents: we heard Kate's reason was that her husband had obtained the job in Gibraltar. So from experience, Joanne, I would say that most relocation cases, it's either for a new job, a new, exciting job, or if a client may have met a new partner, who, for whatever reason, is unable themselves to move to the UK. And also I have clients who are not British nationals, but have lived in the UK and wish to return home following a separation. The court, when they look at these applications, they will consider the the motivation for the relocating parents. Is it a good reason or not? It can be very easy at an early stage for the relocating parents to be understandably frustrated and stressed with the situation with the other parents not giving consent for for the relocation. But it's important to keep on top of that, because from a strategic point of view in the case before the courts, if you present as overly critical of the other parents, then that could could backfire. So you need to stress as I said from the outset that you are understanding of the other parents position. And that ultimately the court needs to make the best decision for the child or children in circumstances where the parents can't agree.

Joanne 9:42

So really good preparation is going to be key to success, isn't it? If like Kate, her ex-husband wasn't happy about this, it's a really tough decision. So it's important really, isn't it to ensure that you are as prepared as you can be?

Sam Carter 9:56

Yes. Well, preparation really is key in these cases. The first stage of these cases is to put together a proper fully thought through plan. I would say that most cases actually fail because they're they're unable to get this plan in place at the outset. And if there's an issue that you haven't considered, then that calls ointo question the credibility of the relocation. So really what what the judge is looking at is, well, is this a proper thought through plan for for a move, or is it just pie in the sky with little work undertaken? So really Joanne, what I advise clients at the outset is they need to do the legwork to put this plan together before we bring any court application.

What sort of preparatory steps should people be thinking about if they are thinking of one of these international relocation cases and there is an objection raised by the other parent? Could you talk us through those steps Sam?

I would say first of all, consideration of immigration issues. So if you get the green light from the court, to move your child to a different country, do you then have the right to live and work in that country? Do you have the rights to access public services, and lots of people don't really give this issue too much consideration, especially now post-Brexit, of course, British nationals no longer have that right to travel, live and work in the European Union, this has become all the more pertinent. So it can be sensible at this stage, to consult an expert in immigration law, just so they can put in writing to the effect that look, if we get this green light from the family law court, that this parent and child will be able to live and work in the country that they're seeking to move to and to access public services.

Consideration also needs to be given in respect of how the child's health needs will be met in the new country. So this may be linked to the immigration issue as to whether the child would be eligible to access public health services or not. If not, then you're going to have to provide evidence to the court of private insurance for health care purposes in the country you're seeking to move to and how that will be funded. It's also a good idea as well to give the courts some information in respect of local doctors, hospitals, et cetera, again, a short letter from a from a GP practice to confirm that they would be happy to enrol the child, would be a sensible thing to get at the outset.

Consideration also needs to be given to the issue of schooling. Even in UK for internal relocations, this can be an issue because there's a different school system, for example, over the border in Scotland, and this is, of course, consideration for moves outside of the UK. So you will need to again, provide evidence in respect of whether a child would be eligible for state school in the location you're seeking to move to, or if not what you would do in respect to private provision. And I find, Joanne, from experience, judges and CAFCASS generally like it if the relocating parents, before bringing the court application, has travelled to the area they're seeking to move to and has spoken with proposed schools to have that discussion with the head teacher and the support staff and to look around the facilities. And again, that comes back to I think the motivation behind the move, and that this is a fully thought through plan and isn't just as pie in the sky, if you will. So you really need to do that homework.

Also, as Kate explained in her story, consideration needs to be given to language. Of course Kate's children moved to Spain, and they needed to learn Spanish - they're at a Spanish speaking school. Now, in some cases, if a child is unable to speak the language of the country or you're seeking to relocate to, in those circumstances you may be saying well, actually the child at the start anyway would be going to an international English speaking school. So again, you're going to have to look into all of this and, as I said, provide evidence.

Would you say then from experience, Sam, that maybe relocation cases in Europe maybe would have more favour than maybe say, for example, a relocation to New Zealand or Australia?

Yes, I would say so. It's generally that the further you're looking to go, the more difficult it is because of the obvious impact that will have on contact. So yes, it's easier to put a case together for a relocation in Europe, as opposed to say, the states or Australia.

A further issue is the practical finances of the relocation. A legal battle is not cheap and that needs to be funded. But you also need to show to the court that if you are to move that you are able to afford to do so. If, for example, you may have a property in the UK, you will have to think in respect of whether you would be selling that property and looking to purchase a new property in the country you're relocating to, and if so, how that would work in practice, because we know if going through court proceedings, they can take time. So the timing of the relocation isn't known, which does create obvious difficulty, but but you need to think about all of the different options and explain them to the court at the outset.

And I think finally, you need to think carefully about the contact proposals you are going to put forward for the child spending time with the left behind parents, it's tempting to be as generous as possible in making these proposals because, of course, the left behind parent their case will be well, if my child relocates abroad, then I will see them a lot less than what I'm currently doing. So in those circumstances, it's natural to say, well, actually, you can come over every other weekend, and you're free to visit, the child can come and see you for all of school holidays, for example, but I think at the same time we you need to be realistic, experienced judges will see through this and think well, is this a level of contact, you will actually promote, or are you just saying you will do so to encourage me to give you the green light for your relocation. So it needs to be realistic and you also need to consider the logistics. So you will need to provide the court with evidence in respect of costs of flights and local accommodation. You are also going to consider what would happen in respect of the child coming into the UK. Would the child travel alone or would you be travelling with the child? So you really have to think about this and put forward a clear, realistic plan to the courts.

That's really interesting. Thank you, Sam. And hopefully, many of our listeners today will maybe take some comfort from that if indeed they're they're facing similar circumstances. So with us also here today, it's an interesting angle, because we're also joined by Jose Maria Del Rio. Jose is a family and children law, expert and solicitor based in Malaga in Spain. And the problem is that it's all great when Sam maybe assists the clients to get to go to Spain or indeed the country of their choice, but of course, what happens if things don't work out when they are in that country of choice, and they're living there through work, and indeed, something doesn't work out, the relationship breaks down, they split up. How easy is it in those circumstances, to then necessarily come back? So welcome, Jose, hopefully, you can talk us through the problems from your side and Spain.

Hello, everyone. Thank you Joanne. In Spain it's similar to UK in the way of all the facts needed for a relocation. But we have a different proceeding in the cases when one of the parents doesn't want the relocation of the child for another jurisdiction. We have a big problem here in Spain, because we have many British citizens living in Spain, and in one moment they decide to come back home. So this is everyday we have these type of cases. Having the custody doesn't mean that you can do whatever you want with your child or your children, you have to ask for an authorization to the other to the other parent. So in Spain, we have two proceedings here: one is an urgent proceeding that is very fast, but many of the tribunals in Spain don't accept this because when you are asking for a relocation in Spain to move to England, for example, in this case, the judges established and when you ask for the relocation, there is a break of the of the rights of the visitation for the other parents.

So, what is happening there, so, they tell you know, you have to go to the general proceeding to modify the general regulations and you have with your child, so, custody, maintenance, right of visitation. Most of the time - 90% of the time - you have to spend one year with this proceeding, because you have to change the custody rights, the visitation rights and maintenance and everything. The proceeding or the step of the proceeding is very similar than Sam says: you have to, in my personal opinion, in my experience, you have to make a balance between what your child has in Spain paying and what your child can have in UK, so, you have to get a school, what is the advantages of a new school in the UK and not in Spain. Language: if you are British, but you are living in Spain or your son or your daughter are in Spain, which language is using in Spain at home or with your friends? Also the economic situation of the parents that want to move: if you have a new opportunity to work in the UK with a better salary, with a better condition, you have to show and demonstrate that in Spain you are getting this amount of money, but in UK you are getting more and with this situation the mother is better and the child or the children can have a better situation and show to the judge that it's going to be in the best interests of the child and this is the most important.

What is the main problem and we have in Spain with British or other nationalities, they move directly because they don't want to wait, because we are not very fast. It's a problem that we have in Spain with the code because we have many many cases of that. But you have to wait one year or one year and a half depends on the city. So the people move to the UK, and after the other father, or the mother stays in Spain is then a proceeding with the Hague Convention 1980 can be more certisfactory story to have a normal proceeding in Spain to us for the relocation than defending wrongful removal or detention in another country. So this is the main problem that we have here, and the clients don't know about this, this situation and the problems they can have if they move to another jurisdiction different than the usual residence of the child or the children without the jurisdiction or the other father, or mother.

That's really, really interesting, Jose and as you say, obviously things become complicated because of frustrations in a different jurisdiction people take things into their own hands. And then as you say it actually aggravates the process. Sam I think has got a couple of questions arising from that.

Hello, Jose is Sam here.

Hello Sam.

I wonder what approach does the court take over there when dealing specifically with a British family and British children who are in Spain? Understandably, in your situation, there'll be a separation that the two Brits are there and maybe the mother following separation wants to return home to the UK. So does that have much significance with the Spanish court?

Here at the end it is case by case same as the UK. It's true that the judges here understand the situation of two British citizens living in Spain and in one moment want to come back to the host country. Normally, if you have facts, and you can prove the mother or the father will be better in the UK, they give the relocation but they protect a lot the other parents for the rights of visitation. As you said before that one of the most important thing in this type of case is about is the travel expensive or how many days the child can be in Spain when there is a change of the residency but normally in Spain in this type of situation you have 70/80%. There's relocation because at the end, you're not doing anything wrong. You're asking to the judge to come back to your country with your family, so normally with this situation, and you have many possibilities to get the relocation of the country, in Spain, if you go to the UK without any permission of the other parents, you have many possibilities that don't give any relocation in the near future.

So Jose, it must be very difficult in cases then when, for example, someone's left, say an English person who left the English jurisdiction and they've gone to work in Spain, and they've met a Spanish national, and then they've had a child together, because then of course, the child is born in Spain, is Spanish, and if that relationship breaks down and say the English mum then wants to return to England, that's really tricky, isn't it?

Yes, because at the end is really really really hard for a judge in Spain to change the city or the country if one of them is Spanish it's more like a patriotic thing for the judges. It's different if they are two citizens from the UK.

That's really helpful. Thank you, Jose, and for any of our listeners, you'll be able to get access to Jose via the SpittingUp.com website. So if anybody is in Spain and is facing a difficult situation, a breakup or a splitting up of their relationship, and they've got children and there's resistance about returning home, then please do get in touch with Jose who will be delighted to assist and share his experience with you in the same way Sam can if you're planning on leaving the UK and going to Spain. So thanks, guys that's been really educational, and hopefully, of much use to all of our listeners in both the UK and perhaps in Spain, as well today. Thanks very much.

And thank you for listening to this latest episode of Splitting Up Dot Pod. I hope our stories and our experts can help you in the same way they did Kate.

We are covering a whole range of topics surrounding divorce and separation in this series, so do sign up wherever you get your podcasts and check out our archive of episodes. And there's even more information available on the website SplittingUp.com. We have loads of free advice and long lists of experts you can contact for help and advice. I think planning ahead and knowing what you need to know are the key takeaways this week. I'm Joanne Major, and I'll see you next time.