The onset of the Pandemic resulted in many changes to modern day life, from a sudden rush of companies outfitting employees to enable them to work remotely, to the isolation from family that was experienced by many during the various lockdowns from 2020 through to 2021. This has seen a spike in people relocating. Whether the relocation is due to a desire to be in a greener space or to move closer to family, it has come with its own set of issues to navigate.
In particular, separated parents have had to navigate and, at times, revisit the often contentious issue of how to arrange and share contact with their children. This article explores the law around relocating with your children when you are separated from the other parent and touches on the factors you, as a parent, should consider and what the court must consider in such a move.
Trainee Solicitor at Wollens Helen Prince looks at this:
What is the Law ?
With relocations that are international the Children Act 1989 states that no person may remove a child from the UK without either the written consent of every person with parental responsibility or the courts permission. There is no such provision within the Act in respect on relocations within the UK. The court will only interfere with a UK relocation under specific circumstances.
Prior to 2015 the court’s general position with regard to UK relocation was that, should the primary carer (the person who spends most time caring for the children) wish to relocate within the UK then this should only be interfered with in ‘exceptional’ circumstances.
However, this differing treatment of international and UK relocation cases was found to be flawed by recent case law whereby it was impossible to find any satisfactory explanation for the different approaches and stated that both international and UK relocation cases should be determined in the same way; that is, in the best interests of the child. There is no longer any favour for the primary carer.
Whilst the approaches to international and UK cases are now the same, the law remains very different (please note, this article only deals with the law relating to UK relocation).
The court will consider:
- a) the ascertainable wishes and feelings of the child
- b) the physical, emotional and educational needs of the child
- c) the likely effect of a change in circumstances on the child
- d) the age, sex, background and any characteristics of the child that the court deem relevant
- e) the harm suffered by the child or is at risk of suffering
- f) how capable each of the child’s parents are in meeting the child’s needs
In a recent case the Judge stated that any decision made by the court must be guided by the paramount principle within the Act, being the welfare of the child. It is particularly noted that “the welfare of a parent is only important so far as it impacts on the welfare of the child”.
A case study provides a demonstration of the court’s current stance on UK relocations and its very child centric approach. This was an unusual case where siblings were actually separated as the best outcome was different for each child. The parents had separated previously and had an amicable arrangement for shared parenting. The mother wished to relocate permanently to the countryside following the pandemic. The Father was unable to relocate to be near the children due to his job.
In the end the court ruled that, due to certain fact specific issues in the case, the older child would be best residing with his Father and the younger child residing with the Mother, with as much contact throughout the year with each parent and each other as possible; illustrating the courts ample discretion in deciding such cases.
What you can do
Firstly, it is important that any decision to relocate is discussed with all persons with parental responsibility and the move agreed, if at all possible. The courts take a dim view of anyone moving without notice to or discussion with the other parent involved.
Secondly, if there is already a Child Arrangements Order in place that dictates what the contact arrangements for each parent are, or for which school your children attend, then you will need to apply to the court to vary the Order to take into account your relocation and any changes to the contact/school arrangements.
If you cannot come to an agreement with the other parent about your relocation then it may be necessary to apply for a Specific Steps Order which, if successful, will result in a court Order confirming your relocation and the arrangements as to contact and schooling going forwards.
Alternatively, if you wish to oppose a relocation then you will need to apply to the court for a Prohibited Steps Order. If successful, this will prevent the other parent from taking the children with them when they relocate.
Tips for approaching an application to relocate
- When applying for a Specific Steps Order to relocate, the emphasis must be very much on what is in the best interests of the children and how it will benefit them.
- It is important that you do not ignore the potential impact on the relationship between your children and the parent that you are moving away from but deal with it head on.
- Ensure that you have thought about how the relocation will look practically, what school the children will attend, will they be able to continue their extra-curricular activities, how will childcare outside of school be managed.
- Clearly address the issue of how contact with the other parent will be maintained.
What is becoming clear is that the courts have an expansive discretion when dealing with such applications and each case is dealt with on a very fact specific basis. Therefore, a well thought out and drafted application may be the difference between a successful application and an unsuccessful application.
If you need assistance in a matter of this nature – Helen Prince is part of our family team and can assist in matters such as these.
At Wollens our family team are experts in this field and can advise you at an early stage.