SHOULD I STAY OR SHOULD I GO?

Should I Stay or Should I Go?

What to do if you want to relocate with your children, either within the UK or abroad, and the other person with parental responsibility does not agree?

The law surrounding relocation can be complicated. The approach of the courts means that cases can be very finely balanced and legal advice should be sought from a specialist in this area in order to ensure the case is well prepared from the outset and all aspects are properly considered. It is important to have the understanding and information about the issues before putting in motion their plans to relocate. Quite often people come to me having sold their house, purchased another house or within months of a new school year starting and this simply does not leave time to resolve a relocation dispute. Typically, if agreement cannot be reached and court proceedings are required, at least two hearings will be necessary along with a welfare report and statements from both sides and you are likely looking at a 6 month process minimum before any final determination can be made by the Court.

What do I need to know about relocation?

Firstly, it is important to understand what parental responsibility means and who has it? Parental responsibility is “the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property”. Where there are more than one person with parental responsibility for a child, disputes can easily arise especially where those people have experienced relationship breakdown. It is also natural on separation for parents to want to live separately and this may mean a wish to relocate either within the UK or abroad.

Where there is no order in place defining arrangements for a child, neither parent can remove the child from the jurisdiction without the consent of any other person with parental responsibility for that child. When there is a child arrangements order in place, the person with whom the child is said to “live” can remove the child from the country for a period of 28 days without the other’s consent but not in contravention of any contact arrangements that the order provides for.

It is therefore the case that you cannot leave the country with the child to live elsewhere on a permanent basis.

In respect of internal relocation, the principle is the same; if the other person does not agree and the relocation would impact the child significantly by perhaps having to change school, see their other parent less or travel significantly, then the other person must be consulted and should agree before this happens. Unfortunately, this does not always happen and sometimes a parent relocates without consent which, for the parent choosing to do so can be extremely distressing if they are forced to return the child back to their former home or school and, for the parent left behind can result in a reduced level of time with their child and being excluded from important decisions about where they live and what they do.

What will the Court consider?

In the time that I have been practising family law, the number of reported cases in relocation matters have significantly increased. This is especially the case with internal relocation and I have been lucky enough to work on a number of significant cases in this area.

Even with the more recent cases developing the legal interpretation, the general principles applied remain the same and are as defined by the Children Act 1989.

The main consideration of the court will be what is in that child’s best interests and what is the impact on their welfare.

Areas frequently considered are:

  1. What will it mean to the relationship a child has with both of their parents and extended families i.e. who are they living behind or who will they be able to have a more frequent relationship with;
  2. What school will the child attend, will they need to move school and leave friends behind – how disruptive would this be;
  3. Is the proposed area or country of relocation safe and offering an equal or better standard of living;
  4. What are the benefits and disadvantages of staying or going?
  5. What are the other practical issues i.e. how will the relocating parent support themselves and the child, what child care arrangements are necessary and what is the travel for contact like etc.

There are many more other considerations and I understand that every family and their arrangements are unique and I therefore employ a subjective approach to all relocation cases exploring with my clients what they need and what is best for their children. It is just impossible to apply the same approach and assumptions to every family. Therefore what is important is to go on a real fact finding mission and to get all the information at an early stage of the case so that it is properly prepared and any deficits identified.

Relocation cases, as with any family law, are decided by applying the law, considering the evidence and then a Judge making a determination. Judges have discretion in how they undertake this and, in finely balanced cases such as relocation, if you are a parent who wants to leave or who wants their child to stay, expert legal advice at an early stage is essential to try and ensure the best outcome for you and your family.

Emma Taylor is a Partner at GoodLaw Solicitors LLP specialising in children matters and offers a free 30 minute consultation in qualifying circumstances. To contact Emma, please email emma@goodlawsolicitors.co.uk or call 01273 956270.