Relocating with children when you are divorced or separated

It is not unusual on the breakdown of a relationship, for one parent to wish to relocate with the children of the family. There may be various reasons for this including, for example, a wish to live close to family members, to work abroad, to join a new partner, or sometimes to escape an abusive partner. Such relocation may be internal (within England and Wales) or external (outside England and Wales).

The principle applicable to cases where a parent wishes to relocate with their children within England and Wales, is the same as that applicable to cases where a parent wishes to relocate outside England and Wales, namely the welfare of the child is paramount.

Do you need a court order to move with your children within England and Wales?

A parent may relocate internally without a court order, but assuming the other parent has parental responsibility for the children, their consent should be sought (or a court order obtained) beforehand, as the proposed relocation is likely to have an impact on the time the children spend with that parent. It will also involve the children changing schools and potentially moving to a place with which they have no connection.

In the absence of agreement, the parents should consider mediation, as an alternative to commencing court proceedings, unless of course there is urgency required in making the application. If mediation fails or is not appropriate, a parent wishing to relocate internally, without the other parent’s consent, should make an application for a Specific Issue Order under The Children Act 1989. If they fail to do so, a parent who wishes to prevent the proposed move, must make an application for a Prohibited Steps Order, under the same legislation.

How can you move abroad with your children, if the other parent does not agree?

A parent wishing to relocate externally without the other parent’s consent, must apply to the court for permission to do so. If they fail to do this and subsequently leave the country without the other parent’s consent, they may be guilty of child abduction, which is a criminal offence

When a judge decides whether or not to grant a specific issue order or a prohibited steps order, they will base their decision on the written and oral evidence presented by the parents, with the welfare of the child being the paramount consideration. The judge will be guided by a Welfare Checklist, which appears in Section 1(3) of the Children Act. The factors to be considered include:

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

(b) Their physical, emotional and educational needs

(c) The likely effect on them of any change in their circumstances

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

(e) Any harm which they have suffered or is at risk of suffering

(f) How capable each of their parents..…are of meeting their needs.

A judge hearing a relocation application, will need to be reassured that proper arrangements have been put in place to protect the children’s interests, such as suitable schools, suitable accommodation, financial support being available, proposals for ensuring proper contact with the parent opposing the application (including travel arrangements and the costs thereof, especially if the intention is to move abroad), details of family members who may live nearby, and so on.

A judge will also consider a parent’s motivation when making or opposing an application to relocate. Details of all these arrangements, with supporting documentation, must to be filed in evidence, of the application to relocate, or to oppose the relocation.

After considering all the evidence, a judge will base their decision on what is in the best interests of the children. The Court of Appeal has stated that a judge is required to carry out an all-encompassing assessment of all the facts of the case, by taking into consideration the Welfare Checklist.

As a senior judge stated in a recent case, the court should consider such cases in a positive manner, ‘…seeing if there is a way in which the move can be made to work’ and thereby ensure that both parents’ opposing views are taken into consideration, as much as possible.