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Advice

Child relocation post lockdown

As restrictions lift across the UK, it is clear that priorities have changed drastically since the pandemic struck.

With the introduction of remote working it is now less important to be located in a particular area for work. As a result, people may consider relocating either internationally or to more rural areas of the UK. However, for separated parents, the possibility of relocating whether internationally or within England and Wales is fraught with complexity.

Relocation within England and Wales

If one parent moves to another part of the country, this can have a significant impact upon a child’s upbringing. For example, if a parent that has always been London based decides to relocate to the Lake District as attendance at an office is no longer required and wishes to take their children, they would require the other parent’s agreement or, alternatively an order from the court permitting them to do so.

International Relocation

If a child’s parents are proposing to live in two different countries (even within the UK), the impact upon the child’s upbringing will be even more substantial. Again, to relocate internationally with children you will either need the other parent’s agreement or permission of the court.

Welfare Principle

Each case will be decided based on what is in the child’s best interests, and turn on its own facts.

Reaching an agreement outside of court

If there is sufficient time, trying to reach a collaborative or mediated agreement would be preferable to court proceedings. Such an approach would give the other parent time to adjust to the idea and provide the opportunity to contribute to a plan which would hopefully lead to a joint decision.

Applying to Court for “leave to remove” or “permission to relocate”

If negotiations break down and an application to court is issued, the court will assess the strength of the application. The court should note: -

  • The welfare of the child is the court’s paramount concern;
  • There is no presumption in favour of either parent;
  • The case should be decided on what is in the child’s best interests;
  • A case will not be decided on the labels given to previously made arrangements. For example, the court will not adopt one approach in a situation where there is a primary carer and a different one where there is a shared care arrangement;
  • The court should reach its decision by undertaking a global, holistic evaluation of the options. This requires the court to: -
    • Conduct a welfare analysis of each realistic option for the welfare of the child on its own merits and in the context of what the child has to say;
    • Conduct a comparative evaluation of each party’s plans; and
    • If appropriate, scrutinise and evaluate each parent’s plan ‘by reference to the proportionality of the same’

What will the court assess?

The court will assess a number of factors including, but not limited to: -

  • How the relocation will allow for the parent to provide financially for the children;
  • The extent to which appropriate housing and schools have been identified for the children;
  • Any potential language and cultural differences;
  • What the children’s own wishes and feelings are about a move;
  • What the alternatives would be for the children if the application was refused;
  • What plans are in place for the children to continue to maintain a strong relationship with the other parent.

Strategy

Advice to anyone contemplating relocation, and who anticipates resistance from the other parent, is that they should start to research the resources available for the children in the proposed new location as early as possible, and anticipate and address the other parent’s likely concerns.

How can I challenge a relocation?

Conversely, a parent who thinks that their former partner is making decisions about their children’s future without seeking agreement or providing full information about the arrangements, can consider making an application to the court for a Prohibited Steps Order to prevent the child being taken out of the area or country, either at all, or until proper arrangements have been put in place. This includes arrangements for when that parent will see the children.

Enforcement

In international relocation cases, legal advice should be sought as to what steps can be taken in the court of the other country to ensure that if an order made in England and Wales permitted a move, any arrangements for the parent left behind would be enforced, and/or whether a “mirror” court order should be made in the country where it is proposed that the children will relocate to.

What if the children will stay in England and Wales and only one parent relocates?

Even in circumstances where a parent is relocating and agrees that the children will remain with their former partner in the UK, the relocating parent may want to ensure that the other parent will allow the children to travel outside of England and Wales to their new home.

This could potentially prove more difficult as a result of the current Covid restrictions on travel.

As with all decisions effecting children, permission to relocate will only be granted or refused if it is deemed to be in the best interests of the children.

Expert advice from a family law solicitor should be sought at an early stage of planning, particularly due to the impact of the COVID-19 pandemic.

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