Child Relocation

If there is no court order in place to prevent a relocation to another part of the UK (defined as England, Wales, Scotland and Northern Ireland) then — in theory — nothing is stopping a parent from moving and taking their child with them.

However, such decisions shouldn't be made lightly or acted upon overnight unless there is a real and serious risk of harm to the child (such as in serious cases of domestic abuse or threats to the child’s life). 

Separated parents should try to reach an agreement about childcare arrangements if one parent wishes to move out of the area permanently with their child.

If no agreement can be reached, a parent can apply for a specific issue order under the Children Act. This would seek permission from the court for the child to relocate with them. 

If the relocating parent doesn’t make an application for a specific issue order but the non-relocating parent believes that there is an imminent risk of the child moving away permanently, they can make an urgent application to the court for a prohibited steps order under the Children Act 1989. This would prevent the relocating parent from taking their child away to live with them permanently. 

Finally, if there is a child arrangement order in place which states that the child should live with one parent and spend time with the other, then the resident parent would again (in theory) be free to move to another area within the UK without needing the non-resident parent’s permission, so long as the rest of the order isn’t breached. 

In some cases, there will be an order in place for shared care — so it’s inevitable that the order would be breached by the relocating parent if they decided to move away with their child without the agreement of the other parent as this is likely to materially impact the logistics of the order. 

If contact or shared care arrangements will be impacted as a result of a move and it’s impossible to stick to the terms of the order due to distance or travel logistics, then the relocating parent could be at risk of breaching the court order if they move. In these circumstances, the relocating parent should make an application to court to vary the current child arrangement order.

If you’re considering moving overseas with your child, you must first gain the consent (ideally written consent) of the other parent and anyone else who has parental responsibility.

Initially, you should always try to resolve the issue amicably, preferably through mediation or with the support of solicitors.

Where an agreement can’t be reached, you may need to apply to the court for permission.

If there is a child arrangement order in place which states that the child lives with one parent and spends time with the other, the resident parent can take the child out of the UK for up to one month (four weeks) without needing the consent of the other non-resident parent.

If someone with parental responsibility for a child isn’t named as someone with whom the child lives in a child arrangement order, they cannot remove the child from the UK without the consent of the resident parent. This would be classed as ‘wrongful removal’ and the other parent could make an application for a summary return of the child. 

When considering whether to grant permission, the court will look at the reason for the move and the consequences of granting or refusing permission. While a desire to relocate to live with a new partner is seen as an entirely understandable reason for wanting to move, it doesn’t guarantee that permission will be granted. The court will carefully assess both options (staying or moving) from the perspective of the children to decide whether the move is in their best interests overall. While the impact on the parents (and their relationships) is, of course, relevant to the overall assessment of what’s best for the future, the court’s focus will always be on what the move means for the children and how it’ll benefit or disrupt them. 

You only need to obtain the permission of the court to relocate if the other parent (or holder(s) of parental responsibility) doesn’t agree. However, it’s common for the ‘left behind’ parent to insist on the arrangements being subject to an order so that they know contact can and will take place after the move. In addition, some countries require a court order even if the parents agree. In such cases, it’s often possible to obtain an order by agreement. It’s always important to understand what paperwork and confirmations the new country requires well in advance to ensure that you have everything you need. In some cases, a mirror order will be required in the new country alongside the original order here. 

We work with an extensive network of specialist lawyers around the world to ensure a fully ‘joined up’ approach is taken in child relocation cases.

Unfortunately, court proceedings aren’t quick. If an agreement can’t be reached, it could take around 12 months for a court application to be determined from start to finish. The exact time that an application takes depends on what evidence is needed in the specific case as well as what the waiting times are at specific court and Cafcass offices. The delay means that if you want to relocate with your child (or children), forward planning is essential since permission can’t be obtained urgently.

Much of the delay in processing court applications is caused by the backlog in the court system, alongside the wait for hearing dates. In many Cafcass cases, the court will also require a report from Cafcass, which could take between three and six months depending on what the report needs to cover and which area you’re in. 

However, there are a few things you can try that may expedite the process:

1. Have all your plans ready and clearly set out as early in the process as possible.
2. Depending on where you’re moving to, it may be possible to use arbitration (instead of court), which can conclude the matter much faster. Arbitration is only available for relocations to certain countries and isn’t available where there are safeguarding concerns. A solicitor will be able to discuss whether arbitration could be used in your case.
3. Sometimes, it’s possible to instruct an Independent Social Worker (ISW) — instead of Cafcass — to produce a report, which can avoid the aforementioned delays. Typically, private ISW reports are available in six to ten weeks. However, they come with an additional cost. 

Even if the move is interim, you can’t relocate until you have the agreement of the other parent (or holder(s) of parental responsibility) or the permission of the court. While it’s possible to ask the court to sanction an interim relocation while the case is being considered, such permission isn’t often granted. This is because of the significant change that such a move can be for the children, which will be exacerbated if permission is later refused. This is another reason why forward planning — and making an application well in advance of when a move needs to take place — is so important.

If you move abroad with your child without the consent of other people with parental responsibility (or the court), this is likely to be classed as child abduction. This constitutes both a civil and criminal offence and can have serious consequences. The ‘left behind’ parent is likely to be able to issue urgent applications in either the country of origin or the country to which the children have been taken to secure their urgent return home. Depending on the circumstances, they may be granted legal aid to do so.

If the court made an order to grant the relocation or failed to grant an order to prevent the relocation or 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.

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’s important to note that ‘contact’ and ‘spends time with’ means more than just face to face contact and can also include cards, letters, gifts, phone calls, video calls and more. The type of contact required and who is responsible for facilitating it should be specifically set out in the order to avoid any issues.