It is commonplace for a couple to commence a relationship and to move to a part of the country where one party is not originally from.
Following any separation, therefore, that party may want to relocate to their hometown to be close to family, friends and a support network. If there aren’t children involved and it’s a case of the parties either just simply separating or divorcing then this isn’t a problem; however, the issue arises when there are children involved and one parent wishes to relocate.
The first key point to highlight is that of Parental Responsibility. A child’s mother will always automatically acquire parental responsibility whereas this is not necessary the case for the child’s father. In the event that the parents were married when the mother gave birth to the child then the father will automatically gain Parental Responsibility but if they weren’t married at the time of the birth (and the child was born before a certain date) then the father will either have to have been named on the birth certificate or, in more rare circumstances, have entered into a Parental Responsibility agreement with the mother.
Parental Responsibility is an extremely important concept as it refers to all of the rights, obligations and responsibilities that parents have in respect of their children. Parental Responsibility will be exercised by both parents on a daily basis for more minor decisions such as what food to feed their child. However, there are more important decisions which parents also have to make which concerns Parental Responsibility including where a child will go to school and where they will live. If the parents of a child cannot reach an agreement in respect of these more significant issues, then an application under the Children Act 1989 will have to be made to the Court and it will be a matter for the Court to determine.
The issue of relocation whether that be internally (i.e. within England and Wales) or externally (i.e. outside of the jurisdiction) falls into this category meaning that if parents are unable to reach an agreement as to any such relocation then the decision will be left to the Court. It is usually for the parent who is seeking to relocate to issue the application and they would be seeking the Court to make a Specific Issue Order i.e. making an order on a specific issue which is the relocation of the child. However, if such an application isn’t made then the other parent can make an application seeking a Prohibited Steps Order which effectively is asking the Court to make an order prohibiting the other parent from relocating.
When considering any application made pursuant to the Children Act 1989, the Court's primary consideration is the welfare of the child / children involved. The Court must therefore consider both the welfare checklist contained under Section 1 of the Children Act 1989 and the relocation checklist.
The welfare checklist sets out the following considerations:
- The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
- Physical, emotional and educational needs;
- The likely effect on him of any change in circumstances;
- 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 the Children Act 1989 in the proceedings in question.
This is, of course, an extremely detailed checklist and each parent will have to set out convincing reasons why what they are arguing for (i.e. either a relocation or fighting against a relocation) should be the end result.
The relocation checklist is equally as detailed and contains the following considerations:-
- A full history of the relationship;
- Explanation of the proposed move;
- Suitable schools in the proposed new area;
- Motivations for the move;
- Proposals for children to spend time with the other parent;
- The effect of a refusal.
It is, therefore, extremely important for any parent who is seeking to relocate with a child to conduct thorough research in accordance with the relocation checklist in the first instance to ensure that they have the strongest case possible. It is also important to remember that the welfare of the child / children involved should be at the forefront of all decisions.
For more information on this topic please contact Kate Barlow or a member of the Family Team.
