What happens when, following a relationship breakdown, one parent wishes to move away, taking the children of the relationship away from the other parent?
It’s an incredibly difficult situation and one that is recognised as being one of the most contentious in Family Law. Not only is it contentious, it is also complicated. Where the permission of the court is sought for a relocation, the court must perform a holistic balancing act between a series of complex factors that come in to play before reaching a decision.
BACKGROUND TO RELOCATION CASES
Why does relocation arise?
Although there is no legal distinction between the reasons why a parent would seek to relocate with their children following a divorce, there are 5 broad categories of relocation case.
These cases arise when a parent wishes to return home – to another part of the UK or abroad – after the relationship breakdown, taking the children with her (or him).
For example a work promotion that involves a move, or a new job based elsewhere.
The parent wishes to move with a new partner who wishes to return home – or who already lives elsewhere. In this age of internet dating, perhaps this is even more of an issue.
These cases involve a move somewhere where the parent believes there will be a better quality of life or more opportunities but there are no (or few) specifics in place.
Representing a very tiny proportion of relocation cases, it’s nevertheless important to mention cases where one parent seeks to move to get her/himself, or the child, away from the other parent.
Why are relocation cases so difficult?
Compromise is not really an option
When one parent wants to move somewhere and take the children with them, they can either go – or not. There’s no half way house around which to negotiate. If both parents are living in Hampshire and one is offered a job in Newcastle, suggesting a move to Birmingham as a compromise is unlikely to help anyone. Equally, a move to Italy by a parent who really wishes to go back to live closer to family in Greece will help neither the parent wishing to move nor the one left behind.
Access arrangements become complex
When separated parents continue to live relatively close to one another, access arrangements can be managed fairly easily. When one parent moves away, taking the children with them, it makes it much more difficult in practical terms for the remaining parent to maintain contact with the children.
Even temporary moves can be problematic
In some cases, concerns can arise even from a temporary relocation, for example an extended holiday to visit family or friends, or to deal with a specific issue such as the death of a relative. The remaining parent may have concerns that there is no intention to return with the children – or that circumstances may then arise which make this the case.
No two cases are the same
The very personal nature of the reasons why someone would wish to relocate make it impossible to pre-judge the outcome of one relocation case based on anything that has gone before. Equally, in law, there is no distinction between the different ‘categories’ of relocation
Changed attitudes to living arrangements
The reality of life post the separation of their parents for many children is that increasing numbers of parents share care more evenly between them, with both parents remaining involved in the child’s life, making it harder to apportion priority between the parents.
Distinguishing between national and international relocation
In terms of the decision a court must take regarding an application by a parent to relocate, ‘geography’ is just one of the factors that must be taken into account – there is no procedural distinction between a proposed relocation within the UK and a proposed international relocation. However, there are a few points to bear in mind which arise from whether the proposed relocation is national or international.
Automatic prohibition on moves abroad for more than a month
Where there is a child arrangements order in place specifying with whom the child should live, there is an automatic prohibition on taking that child out of the UK for more than a calendar month without written consent of everyone with parental responsibility. Moves within the UK have no such ‘automatic’ restriction on them.
Different orders are available
When an international relocation is contemplated, the parent wishing to relocate can apply for
- A specific issue order under s 8 Children Act 1989. This is available in every case.
- A free-standing leave to remove order under s 13 Children Act 1989. This is only available where a child arrangements order is in place.
Where the relocation is within the UK, the courts might be asked to regulate a relocation with one of the following orders
- A specific issue order allowing the relocation
- A prohibited steps order preventing the child’s relocation
- A specific issue order relating to an issue such as schooling
- A child arrangements order
Impact on consequent legal issues
When the proposed relocation is abroad, there are additional issues that may arise such as the enforcement of contact arrangements. These consequent legal issues can be more or less complicated depending on whether a move is to an EU country or signatory of the 1996 Hague Convention, or not. This is less of an issue if the relocation is domestic, although for moves from England and Wales to either Scotland or Northern Ireland, a child arrangements order would be recognised but would need to be registered in the new jurisdiction to be enforced. The English and Welsh courts may cease to have jurisdiction in family matters if the child has been resident in Scotland or Northern Ireland for more than a year.
PRINCIPLES AND GUIDANCE IN RELOCATION CASES
The welfare principle
When determining an application for relocation, the welfare of the child (or children) concerned is of paramount importance. This is the primary legal principle applicable where there is a dispute over relocation along with the welfare checklist which is set out in the Children Act 1989 (‘CA1989’). Section 1(1) states that
“When a court determines any question with respect to the upbringing of a child…the child’s welfare shall be the court’s paramount consideration”
This will include recognising and/or considering the following:
– delay in determining any application is likely to be prejudicial to the child’s welfare
– court orders should only be made when this is better for the child than making no orders at all
– the welfare checklist in section 1(3) of the Children Act 1989
– the court must presume, in respect of each parent, unless the contrary is shown that the involvement of both parents in the child’s life will further the child’s welfare.
– the appropriate application the parent seeking to relocate should make to the court
Guidance in relocation cases
In applying the welfare principle to determine a relocation issue, the courts must look at the guidance available. However, the courts must take care to apply the guidance to the facts of the individual case before them, and ensure that they do not stick to the guidance too rigidly. Each case will be different, and involve different factors and considerations which will need to be accorded merit relevant to that individual case.
Bearing that in mind, relevant guidance in the majority of relocation cases will include:
- Analysis of Competing Proposals
Although the application before the court will be from one parent proposing one course of action, the other parent will have a competing ‘plan’ relating to where the children should live. The courts must carry out a comparative evaluation of both proposals.
The Court of Appeal guidance in Payne v Payne  provided that there is no presumption created by CA1989 s13(1)(b) (a person in whose favour there exists a Child Arrangements Order) in favour of the applicant parent.
- Consideration of the motivations of both parents
Is the parent that seeks to relocate really attempting to disrupt the child’s relationship with the other parent? Is the parent opposing the relocation doing so in the interests of the child’s welfare, or to thwart the other parent?
- Examination of the planning that has gone in to the relocation
A judge may be more circumspect if the proposed relocation is to a relatively unknown place, where the parent has put little thought into the practicalities of their life there.
- Consideration of the alternative plan
If the parent opposing the relocation has an alternative plan to put forward, this needs to be assessed.
- Establishing the continued involvement of the other parent
How does each parent envisage the other parent having continued involvement in the child’s life following the relocation?
- Exploring the child’s wishes and feelings
Depending on the age of the child, these will become more important, but a child should not be asked to ‘choose’ between parents.
- Looking at the impact on the relationship between the child and the other parent
The courts must look at the role that other parent (who will not be relocating) has with the child – taking into account
- The role he or she currently plays in the child’s life
- The impact of the move on his future involvement
- The role of ongoing contact in reducing that impact
- Considering the impact of refusing the application to relocate
If refusing permission to relocate will have a significant, detrimental effect on a parent who is clearly the child’s primary carer, this may impact negatively on the welfare of the child.
- Examining the impact of relocation on the child’s relationships within a wider family unit
If a child has strong relationships with siblings, half siblings or step siblings who are not also involved in the application, this may be a factor that becomes important.
- Exploring the range of the court’s powers
It may be that the court can use the powers available to it for example under an international convention such as the Hague Convention on Child Protection.
The considerations set out above are likely to come into play in most relocation cases. In addition, while all relocation cases are difficult, there will be others that are even less straightforward, involving:
- Significantly-shared care arrangements between parents
- Older children
- Motivation to exclude the other parent
- Previous abduction or unsuccessful relocation application
- Immigration issues – both in relation to the proposed destination, but also in relation to the status of the parent concerned in the UK
- Child protection matters
If you are considering an application to the court in relation to relocation, or are faced with the prospect of opposing a relocation, you may find our checklists helpful:
For more detailed advice, contact us today