Should they stay or should they go? Relocation and children by Hannah Atkinson

Family Law|April 10th 2018

Courts have to contend with the tricky issue of relocation whenever a separated parent wishes to move with a child from England and Wales to a foreign country, or even elsewhere in the United Kingdom.

In general, one parent is not able to relocate abroad with a child unless they have permission from everyone with parental responsibility for that child or have permission from the court. Where there is a court order in force, known as a child arrangements order, a child must not be taken out of England and Wales for more than one month without the consent of anyone with parental responsible or permission from the court. Even if there is no child arrangements order, consent is still required from anyone with parental responsibility or the court must give permission for the relocation. Otherwise removing a child from the jurisdiction may well amount to the criminal offence of abduction.

With this in mind, it is hardly surprising that the tension often seen between separated parents can escalate dramatically when one of them voices a desire to relocate with the child. Regardless of how genuine the motivation to move might be, one parent will inevitably end up feeling ‘left behind’ and often refuse to agree to the move. If deadlock occurs, the only way to reach a resolution may be to make an application to the court.

The very nature of an application to relocate means the outcome will be binary: in other words, the court will have the difficult task of deciding whether the child should stay or go. There is no ‘one size fits all’ for applications of this nature and there are a whole host of reasons why a parent may wish to relocate. The most common motivations are a parent’s desire to return “home” following a separation, to move for work or to be with a new partner. Every case needs to be examined individually and will be decided on the facts. Whatever the underlying reasons are for moving, the court will scrutinise the factual circumstances.

Ultimately, the court will be concerned with what is the in the best interests of the child and apply a welfare test.

The welfare of a child is paramount and a judge will consider a non-exhaustive list of factors to balance the competing ‘pros and cons’ of the relocation. By way of example, when assessing if the move is in the child’s best interests, the judge may examine the following factors (in no particular order):

  • Existing ties and the network of family and friends in the new location.
  • Housing arrangements in the proposed new location.
  • The parent’s employment prospects and financial circumstances.
  • Any family, siblings or half/step siblings left behind.
  • Cultural considerations and how easy or difficult it might be to transition into a new culture.
  • The quality of education for the child and how easy or difficult it might be to enter a new education system.
  • Any language issues.
  • The quality of healthcare in the new location.
  • Visas and immigration issues.
  • Any political, stability, or safety issues in the new country.
  • Transport links between the new country and the old country.
  • The financial implications and how easy it might be for the child to return in order to spend time with the parent left behind.
  • Any new relationships relevant to the child’s life, such as step parents.
  • The impact of the relocation on the parent left behind.
  • The potential impact on the locating parent of a refusal of permission to relocate.
  • The child’s wishes and feelings – depending on their age and maturity.
  • The existing relationship between the child and the parent who has been left behind.
  • Whether the proposed new home is a signatory to the Hague Convention on Parental Responsibility and Protection of Children – or a member of the EU and so a signatory to ‘Brussels II Revised’. This EU Regulation deals with cases which involve more than one member state. These mean that the left-behind parent would be able to secure the child’s return or enforce the terms of an English child arrangements order in the new country.

As mentioned, the court will consider each case individually and a Judge will have the difficult and hugely sensitive task of balancing the competing interests and perspectives. This sentiment was best summarised by renowned judge Mr Justice Mostyn at the outset of his judgement in the case NJ v OV [2014] EWHC 4130:

“Outside the sphere of State intervention for the purposes of child protection, the hardest decision that a judge ever has to make in the field of family law or, for that matter, in any field, is the relocation decision. The choices are starkly binary. One or other parent will lose and will be bitterly disappointed. There is no scope for finding some comfortable middle ground.”

So it is critical for a parent who wishes to relocate to seek specialist family law advice early on in order to fully prepare and make an informed decision. Although cases of this nature can be complex and finely balanced, Stowe Family Law have a wealth of experience dealing with such applications to relocate. Like many things in life, preparation is key and, no stone must be left unturned. Stowe Family Law are very well equipped to guide you through the process.

Finally, the law has developed and now, if one parent wishes to relocate within England or Wales, the other parent is able to object if they believe it would be not in the child’s best interests. They might argue, for example, that the child’s relationship with the parent left behind would change radically.

 

Hannah Atkinson is a Solicitor in Stowe Family Law’s Hale office. She studied law the University of Sheffield and qualified in 2015. family lawShe has specialised in family law since beginning her career, gaining particular expertise in complex financial disputes and sensitive cases involving children.

She is Resolution-accredited and committed to helping clients to reach a solution without unnecessary conflict. Hannah prides herself on providing practical and straightforward advice in a friendly manner

Outside work she is a sports fan and a keen netball player, runner and skier.

 

Image by Harry via Flickr

Author: Stowe Family Law

Comments(3)

  1. Helen says:

    I have been the only family member to see my grandson since his illegal retention in Spain many years ago. To add to the problems I’m disabled. I’ve been unable to travel for a year.
    With all the arguments on access, there is one forgotten point, we are are not here forever. If I was well enough to travel, that would be the end for both the child and I.
    I’m sorry, but I feel the law concentrates on the simply black and white aspects, it fails on what is human and real. All are important, to the development of a young mind, if there is no legal or moral reason for access, don’t complicate this issue.

  2. Andrew says:

    Mothers, usually mothers, should not be allowed to move away and break contact for their own purposes – at least unless they can meet and secure the costs of travel.

    I cannot resist mentioning that there was a case from Scotland a year or two ago about a mother planning to move to a remote village in Spain. The judge said that she “could not drive but planned to take a crash course”!

  3. Helen Dudden says:

    I do feel that often reason is lost.
    In a remote area of Spain, would medical treatment be available as well as schooling, that often has to be paid for.
    I find getting to a city in Spain costly, and difficult.
    If it’s just and fair, I would question still the end result in some Cross Border Cases. You of course, could be subjected to the laws of that country, should you then become resident.
    Parental Alienation is still alive and well!
    I would be interested to read the outcome of the judgement.

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