How to deal with child relocation upon the breakdown of relationship, Divorce, and Separation

What is Child Relocation

The act of moving to a new place and establishing one’s home upon the breakdown of relationship, divorce, and separation.

After the breakdown of a relationship, divorce or separation the child relocation is not uncommon. If you’re upset because your ex is proposing a move, or you are weighing whether it’s something you should suggest, bear in mind that there are valid reasons why a move could be in your children’s best interests. Before deciding as to whether to grant leave the court will consider:

Introduction

  1. Where the child will be moving to,
  2. Reasons for relocation i.e. pursuit of a career or educational opportunity,
  3. Practical arrangements made for the relocation and;
  4. Existing arrangements between the parents such as co-parenting.

Reading time: 5 minutes

Applications to remove

The Welfare of the Child is of paramount importance.

Under Family Law, any application for relocation will be assessed on the following criteria;

  • The welfare principle
  • Holidays abroad
  • Permanent child relocation
  • Genuine relocation applications
  • Relocation within the UK

The welfare principle:

If a parent needs to apply to court to seek permission to take the child abroad, the court will
base their decision on the welfare principle. This is when a court determines any question with respect to:

(a) the upbringing of a child; or

(b) the administration of the child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.

Holidays abroad:

If a parent wishes to remove the child for a temporary period for a holiday abroad, the court will usually find that a holiday abroad is in the best interests of the child unless, for example, it is a cover for abduction.

Currently, the law permits a child to be removed for less than one month by the person with the Residence Order without the consent of others with parental responsibility. However, if there is a dispute between parents over removal of the child from the UK, an application for a Specific Issue Order can be made. 

Where there are legitimate concerns that the child might not be returned from a temporary trip abroad, the court will need to consider these three elements:

(a) the magnitude of the risk of breach of the order if permission is given;

(b) the magnitude of the consequences of breach if it occurs; and

(c) the level of security that may be achieved by building into the arrangements all of the available safeguards.

Please note, If the child is to be taken to a non-Hague Convention country then it will be usual to obtain expert evidence on the law of the jurisdiction in question to assess the risk and to establish what safeguards can be put in place.

Know Your Rights

If your relationship breaks down and you are thinking of relocation, you need clear direction at the outset on the legal options available to enable you to make informed decisions on the way forward.

Permanent relocation:

The court must take a long-term view in deciding whether leave to remove will promote the child’s welfare as a child’s welfare is paramount. The courts must consider if by not allowing the parent to leave will cause:

Severe distress, which will harm the child or,

If refusing leave will be regarded as an infringement of those parents right to respect for a private and family life.

When a court determines any question with respect to:

(a) The upbringing of a child; or

(b) The administration of a child’s property or the application of any income arising from it,

The Court will also have regard to:

(a) The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);

(b) Physical, emotional and educational needs;

(c) The likely effect on the child of any change in their circumstances;

(d) Their age, sex, background and any characteristics of his which the court considers relevant;

(e) Any harm which the child has suffered or is at risk of suffering;

(f) How capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;

(g) The range of powers available to the court under this Act in the proceedings in question.

Genuine applications:

It is worth noting that there is no presumption in law in favour of the applicant parent wishing to move the child abroad. The welfare of the child is the paramount consideration, and the court must apply the principles and factors set out above. The court is also guided to ask the following questions:

  1. Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?
  2. Then ask is the mother’s application realistic, by which means founded on practical proposals both well researched and investigated?

If the application fails either of these tests’ refusal will inevitably follow. If the application passes the above tests, then there must be a careful appraisal of the father’s opposition. The court will consider

  • Is the father motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
  • What would be the extent of the detriment to him and his future relationship with the child were the application granted?
  • To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
  • What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

It is worth noting that courts are advised to take a holistic approach as it is necessary to consider both parents’ proposals on their own merits. Further, where there is concern over future contact arrangements, the court could impose conditions.

Relocation within the UK:

Relocation within the UK does not require the consent of the court. However, if a resident parent’s plans to relocate are opposed by the non-resident parent, an application may be made to the court.

The resident parent would apply for a Specific Issue Order, and a non-resident parent would apply for a Prohibited Steps Order or a Child Arrangements Order providing that the child live with them.

Legal Aid

For advice as to your rights and options, help with negotiations and preparation of your case, our experienced Legal Aid Lawyers can provide you with reliable and pragmatic legal advice Instantly.

We Are Leading Divorce and Family Lawyers

About Us

 

Legally is an online platform that connects law and technology together to provide customers with quality and reliable legal advice from real lawyers.