What Does It Mean To Relocate?
Is to move to a new place and to establish one’s home.
If there is a residence order in force then a child cannot be
- Removed from the UK for longer than one month unless there is written consent of every person with parental responsibility, or the leave of the court.
However, if no order is in force these rules do not apply.
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. (For more information of Specific Issue Orders please follow the link)
Under rare circumstances a parent will not be permitted to remove a child from the UK on a short holiday.
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 child’s welfare shall be the court’s paramount consideration.
The Court will also have particular regard to:
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) This physical, emotional and educational needs;
(c) The likely effect on him of any change in his circumstances;
(d) His age, sex, background and any characteristics of his which the court considers relevant;
(e) Any harm which he has suffered or is at risk of suffering;
(f) How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) The range of powers available to the court under this Act in the proceedings in question.
A non-residential parent may object to their child emigrating on the ground that permitting emigration would severely restrict the practicability of any contact with the child and infringe that parent’s rights under Article 8 of the Human Rights Act 1998.
Where the child has a strong relationship with both parents the courts will be reluctant to approve relocation if that will cause a significantly negative impact on the relationship with one parent.
If this is the case we would advise an application for a Specific Issue Order to be made. (For more information of Specific Issue Orders please follow the link)
If there are other adults for example Grandparents in the UK who have a close relationship with the child, the impact of allowing leave on those relationships can be considered.
The Courts Consideration
Before deciding as to whether or not to grant leave the court will consider:
- Where the child will be moving to
- Reasons for relocation i.e. pursuit of a career or educational opportunity
- Practical arrangements made for the relocation and;
- Existing arrangements between the parents such as co-parenting
The Payne Principle is a common law test created by Thorpe LJ. Thorpe LJ believed that: “reusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore an application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children”.
This test was created in order to prioritise the welfare of the child. The principle includes:
- Is the application genuine in the sense that it is not motivated by a selfish desire to exclude the father or mother from the child’s life?
Is the Application Realistic and Practical?
- Refusal will follow if the court are not satisfied
A Fathers or Mothers Refusal
- Is the Father or Mothers refusal motived by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
- What would be the detriment to the father and his future relationship with the child were the application is granted?
- Would the child be affected and what is the child’s relationship with the family and homeland?
Impact On Parent If Refused (2nd priority)
- 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?
If leave were refused the mother would she suffer long-term ill health physiologically requiring the use of anti-depressants or a clinical psychologist?
- When appropriate a child’s wishes and feelings can be heard in court and give significant weight to the court’s decision.
The court may accept that technology will help a non-resident parent keep up a relationship with the child even if they were now living overseas. This technology includes:
- Text messages
- DVD and
- Digital photography.
Usually the court will be reluctant to restrict a parent from moving to a different area of the country on the basis that it would harm the child.
While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.