There may be a number of reasons why a person may choose to relocate overseas with their child. It may be that there are job opportunities in that overseas country or that there are family ties, for example.
The first key point to note is that of Parental Responsibility (“PR”). A child’s mother will always automatically acquire PR whereas this is not necessarily 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 acquire PR 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 be named on the child’s birth certificate or, in more rare circumstances, have entered into a PR Agreement with the mother.
PR is an extremely important concept as it refers to all of the rights, obligations and responsibilities that parents have in respect of their children. PR will be exercised by both parents on a daily basis for more minor decisions such as what to feed their child or what to dress them in. However, there are more important decisions which parents also have to make which concerns PR 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 decisions, 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 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 any such application and they would be asking the court to make a Specific Issue Order i.e. making an order on a specific issue which, in this case, would be the relocation of the child in question. 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(ren) 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;
- 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.
The relocation checklist is equally as detailed as the welfare checklist, and contains the following considerations:-
- A full history of the relationship between the parents;
- Explanation of the proposed move;
- Suitable schools in the proposed new area;
- Motivations for the move;
- Proposals for the child(ren) to spend time with the other parent;
- The effect of a refusal.
The first step, therefore, must be for the parent who wishes to relocate to undertake extremely thorough research in accordance with the relocation checklist so as to ensure that they have the strongest case possible. It is also important to always keep at the forefront of your mind the welfare of the child / children involved as this will always be the court’s primary consideration.
For more information on this topic, please contact Kate Barlow or a member of the Family Team.
