Cases in which one parent wants to move away with the children of the family are extremely difficult. In family law terms these are known as relocation cases and usually involve powerful arguments on both sides.
For the parent whose children move away it may mean that they do not get to spend as much time with them; this can have a devastating effect on the parent/child relationship. It can be equally devastating if the parent with whom the child lives is prevented from moving and they cannot get on with their lives. Often relocation cases arise when the parent with whom the child lives has remarried and there may be half siblings involved.
As with all cases involving disputes over the arrangements for children, under the Children Act 1989 it is the child’s best interest which is the paramount consideration taking into account the ‘welfare checklist’.
Case law governing relocation within the UK and outside of the UK is very different.
Moving within the UK
Generally, the law is more sympathetic to parents who want to relocate with children within the UK. The Children Act does allow conditions to be imposed when making a child arrangement order that a child lives with one parent (what used to be called a residence order). Such conditions can be that a child lives within certain area. There is case law in which courts have prevented children being removed to another location within the UK; these tend to be the more extreme cases. One example was where the mother of four children wanted to move to work in a remote Scottish Island from Cleveland; although she was willing to promote contact between the children and their father seven times a year, this would have involved either a 19 hour journey or an overnight stay; also three of the children did not want to move.
Moving outside the UK
The law states that if a parent wishes to remove child from the UK, they must obtain the written consent of every person with parental responsibility or the permission of the court.
It can be an uphill struggle for a parent to convince a court to allow them to take a child abroad to live if the other parent objects. The case of Payne v Payne from 2001 gives some detailed guidance on how to approach such applications, these are:-
- The court will look carefully at the practicalities of the proposals, including how to make sure there is adequate contact with the parent who remains here;
- There is no presumption that the application should be granted;
- The court needs to be satisfied that there is a genuine motivation for the move and not an intention to bring contact between the child and the other parent to an end;
- The effect upon the applicant parent and the new family of the child of a refusal of permission is very important;
- The effect upon the child of the denial of contact with the other parent and in some cases the wider family is very important and the court is required to analyse the current contribution of the other parent and wider family to the care of the child;
- The opportunity for continuing contact between the child and the parent left behind may be very significant;
- The child’s welfare is paramount but all relevant aspects of the welfare checklist must be analysed including, where appropriate, the wishes and feelings of the child;
- The court should first consider with which parent the child should live, taking account of the plans of each parent as to where the family should live.
In a 2014 case a father seeking to relocate to the USA with his new wife and child was prevented from taking the children to live in the USA because of the detrimental impact it would have on the children’s relationship with their mother.
As family lawyers we can advise on the law and legal principles involved but every case turns on its own facts. What is guaranteed is that one parent is will be very disappointed by the outcome.