In this article Jo-Anna Jellings look at potential legal requirements when parents separate and wish to relocate.
Moving with your children
If a relationship breaks down, it may be the case that one or both partners wish to relocate. When there are children involved in the relationship, deciding on where a child will live can be a complex issue.
Decisions relating to where a child should live should be agreed upon by everyone who holds parental responsibility for the child. If those with parental responsibility for the child are unable to come to an agreement on where the child should live geographically, then permission from the court is required to relocate and should be obtained prior to any relocation.
It is a common misconception that simply because a child lives with one party, they are automatically able to relocate without consent or an order of the court. Whether consent is needed will usually depend on whether the child will continue to attend the same school or agreed childcare provider and if the current arrangements for the care of the child can be maintained.
Child relocation is a contentious area of law, and applications to the court for permission are rarely straightforward. One of the reasons for this is that there is generally no real option for compromise. If one partner wants to relocate and take their child or children with them, they either will be given permission to go, or they will not.
Consequently, applications are often met with great opposition from the other party and can be highly emotive. Obtaining good legal advice on such matters from the outset is, therefore, very important.
Welfare of the child:
The court’s paramount concern when deciding child relocation cases will be the welfare of the child. This means that the court must be satisfied that the relocation is in the child’s best interests. The welfare checklist contained in Section 1(3) of the Children Act 1989 sets out the factors the court will take into account when making a decision as to what would be in the best interests of the child. These are as follows:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- His physical, emotional and educational needs;
- The likely effect on him of any change in his circumstances;
- His age, sex, background and any characteristics of his which the court considers relevant;
- Any harm which he has suffered or is at risk of suffering;
- How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- The range of powers available to the court under this Act in the proceedings in question.
It is also important to note that the presumption exists in family law that it is generally considered that the involvement of both parents in a child’s life will further their welfare however, this is rebuttable if the contrary can be shown.
How to make a successful child relocation application:
If you wish to apply to the court for permission to relocate with your child, it is important that your application is carefully planned out with a real focus on how the move will be in the best interests of the child. Your reasoning is important and can impact whether or not the court grants permission; being able to argue your case using persuasive evidence is essential. You should ensure that your application considers the following:
- A full history of the relationship;
- Explanation of the proposed move;
- Suitable schools and accommodation in the proposed new area;
- Motivations for the move;
- Proposals for the child to spend time with the other parent;
- The effect of a refusal.
Consideration must also be given to any court orders that are already in place regarding where and with who the child lives with and when they spend time with others, and the implications that relocating may have on this.
Before making any application to the court, it is also important that you try to explore the possibility of negotiating with the other parent (either face to face, or through solicitors) to see if any agreement can be reached outside of court. There is a requirement to attend a MIAM (mediation information and assessment meeting) with a mediator before making an application to court unless an exemption applies to your case (e.g. urgency, domestic violence or child protection concerns).
FAQ’s
What is the procedure for bringing the application?
The application would be for a Specific Issue Order pursuant to s8 of the Children Act 1989.
This requires completion of a form C100 which can be found online*. Once completed, the form should then be filed at your local Family Court and will then be served upon the respondent/s. If you have any safety or welfare concerns, it may also be necessary to complete a C1A to detail the same to the court but whether this is appropriate in your case will often require careful consideration.
Seeking advice from a specialist solicitor to assist you during this process is advisable.
*https://www.gov.uk/looking-after-children-divorce/apply-for-court-order
Can I challenge my Ex-partner if they wish to relocate my child?
Yes. If your ex-partner has made an application to the court and you have parental responsibility for the child, you should be a respondent and will automatically be given the right to respond. If your ex-partner has voiced a wish to relocate and you have concerns that they may take steps to implement a move without your consent or an order of the court, you may need to make an application to prevent a move.
The necessity and urgency of this would need to be considered. If a move has already been implemented within the UK, the parent who did not give permission may apply to court for the child to be returned. The nature of this application would depend on the location of the child and whether they remained in England and Wales. An order may be granted for the return of the child if the court considers that this is in the best interests of the child. If a child has been removed abroad, different provisions and procedures are in place.
What if my Ex-Partner wishes to relocate my child internationally?
There is no real procedural distinction in terms of an application between a proposed relocation within England and Wales, the UK or internationally. However, the consequences of relocating a child without the consent of the other parent or a court order are different. If a parent has relocated a child to another country without permission, this is classed as child abduction which is a criminal offence.
Where a child arrangements order is in place specifying where the child should live, there is an automatic prohibition on taking the child out of the UK for more than a month without written consent of everyone with parental responsibility. There are specific provisions and procedures that should be followed to seek the return of a child who has been abducted to another country and these shall depend upon the country they have been removed to.
I was unsuccessful in stopping my partner moving away with my child – what can I do now?
If the court made an order granting the relocation, failed to grant an order to prevent the child relocating or to have your child returned, you can ask the court to make an order for the child to spend time with you instead. This would generally be considered by the court as part of any relocation application in any event.
A child arrangements order can specify the time a child should spend with you and whether this contact should take place in this country or overseas.
It is important to note that contact/spends time with does not just mean face to face contact but can also include cards, letters, gifts, phone calls, video calls etc, so the type of contact required and who is responsible for facilitating the same should be specifically set out in the order to avoid any misunderstanding and to try and ensure this takes place without issue.
