Relocation Disputes: What Parents Need to Know About Moving with Children
By Ribet Myles Family Lawyers – Specialists in High-Value and Complex Divorce
Relocation disputes can be some of the most emotionally charged cases in family law. The outcome is often binary: either the children move, or they do not. Whether you are seeking to relocate with your child, or opposing a proposed move, it is vital that you understand the legal landscape and the practical considerations involved.
Disclaimer: This article is for general guidance and does not substitute legal advice. Always consult a specialist family lawyer.
The Legal Framework
The legal position will depend on what orders (if any) are in place with regard to the child, and where the relocating parent intends to go.
International Relocation:
If there is a ‘lives with’ Child Arrangements Order (CAO) in place, then a parent cannot unilaterally remove a child from the United Kingdom. The parent wishing to relocate should obtain written permission from all persons with parental responsibility. Alternatively, the relocating parent should seek leave of the court. The exception to this, provided for by s13(2) of the Children Act, is that the person named in such an order may remove the child for a duration of time less than a month (or otherwise specified).
If there is no ‘lives with’ CAO in force, the Children Act 1989 does not require written permission to be obtained before a child is removed. However, it is important to be aware of the fact that failure to seek consent may result in the commission of the criminal offence of child abduction. The statute providing for this is the Child Abduction Act 1984, whereby it is a criminal offense to remove a child (under the age of 16) from the UK without the consent of those holding parental responsibility. Therefore, in practice, written permission or a court order is almost always required for international moves.
Relocation Within the UK:
There is no automatic legal requirement for permission to move with your child within the UK. Where the court comes into play is if such a move would breach an existing court order, or significantly affect the other parent’s contact, or the child’s schooling. For example, if there is a court order in place regulating child arrangements, and if the non-resident parent travels within the UK outside of their assigned contact time, then the consent of the parent with whom the child lives with, or the leave of the court is required.
In such cases, the left-behind parent can apply to the court for an undertaking that the child will not be removed while applying for a formal agreement or court order. The opposing parent can apply for a Prohibited Steps Order (PSO), or a Specific Issue Order (SIO) to prevent or regulate the proposed move. In these cases, the burden falls on the objecting parent to justify the application.
The Court’s Approach:
As in all children’s cases, the court considers the welfare of the child to be paramount. The key factors the court will consider include:
The child’s physical, emotional, and educational needs;
The likely effect of any change in circumstances;
The intention behind the move, or opposition;
The practicality and the details of the relocation plan;
The impact on relationships with both parents and the wider family;
The ability to maintain meaningful contact with the left behind parent.
As is typical with many children’s cases, the wishes and feelings of an older child are likely to be given more weight, especially in cases where they demonstrate a sense of maturity and understanding.
Does the child need separate representation?
Where an older child is opposing a proposed move, or where there are international complications, outside child abduction (for instance where oversees authorities or a foreign court may need to become involved) a child may be made a party to the proceedings.
The legal provision for making a child party to the proceedings is provided for by the Family Procedure Rules (FPR) under rule 16.2. Practice Direction 16A lists a set of examples in which the court may make a child a party to the proceedings, if it is in the child’s best interests.
If a child is made party to the proceedings (under rule 16.2 or 16.4 of the FPR), then the court must appoint a Cafcass officer (a children’s guardian). The Cafcass officer will then make, and file, a report with the court which outlines the child’s wishes and feelings.
Enforcement of Orders and International Considerations:
1996 Hague Convention States:
If permission is granted for an international move, it is important to ensure that existing orders are recognized and enforceable in the destination country. Here, we must look at the effect of the 1996 Hague Convention which was put in place to further protect the interests of children across international borders.
Orders made in one contracting state under the Convention must be recognized and either declared enforceable, or registered for enforcement, in any other contracting state at the request of any interested party.
There is no single standardized procedure for recognition or enforcement. A recital can be made to the effect that the order in question is intended, from the outset, to be enforceable in another 1996 Hague Convention state.
Non 1996 Hague Convention States:
If the destination country is not a party to the 1996 Hague Convention, then it is vital to seek tailored advice from a lawyer in the destination country well before any final hearing takes place in England and Wales.
Questions that should be considered before any final decision is made are: Will an English order be recognized in the destination country? Could a mirror order be obtained in the new jurisdiction? Will specific wording or a recital need to be included in the English order for this to be done? Draft orders can also be reviewed by local counsel in the destination country to ensure that they meet local requirements.
Wrongful Removal:
If a parent relocates internationally without proper consent or court permission, the left-behind parent can seek the return of the child. Under the 1980 Hague Convention on Civil Aspects of International Child Abduction (covering many, though not all, countries), there is a presumption that an abducted child should be returned unless certain defenses apply. Applications should be made as a matter of urgency once the abduction is discovered.
Arbitration:
The arbitration scheme (which allows parties to appoint a qualified arbitrator to make binding decisions on financial, or children matters) includes relocation cases both within the UK (since 2016) and internationally (since 2020). With regard to international relocation disputes, the proposed destination should have acceded to the 1980 Hague Convention on Civil Aspects of International Child Abduction. As such, arbitration is now an option for a number of relocation cases.
Arbitration is often a quicker process and may be a valuable option to consider, particularly in relocation cases, where it may be important that the matter be resolved by a specific point of time (for instance before the beginning or end of the child’s academic year).
In Summary, What should parents consider before relocating?
When considering whether a move will require specific consent from the other parent, or court involvement, it is vital to consider the distance it will place between the child and the left-behind-parent. In practical terms, any move that places the child an hour or more away from the other parent will likely require discussion, consideration, and cooperation. This is because even a change from a short drive to an hour or more may significantly impact the contact the other parent has with the child. Similarly, for moves over two hours away, maintaining existing levels of contact may become impractical may place unnecessary strain on the child, rendering regular contact to be against the child’s best interests. In such circumstances, parents may need to discuss and agree new contact arrangements, such as meeting halfway, or adjusting the frequency and duration of the contact.
Schooling is another important factor to be considered. Where a move will require a change of school parents should remember hat this is a major step in a child’s life and usually will require agreement from all those with parental responsibility.
Of course there are a host of other factors that must be considered before a parent relocates with their child. The welfare of the child is paramount and all relocation proposals should be well-researched and detailed; including practical arrangements for travel, contact, the child’s wishes, and schooling.
With regard to international relocations, written consent from the left-behind parent or court permission will almost always be required.
Where an agreement cannot be amicably reached between the parents, mediation should be attempted before making a court application. These early discussions can help avoid court proceedings.
Where necessary court applications for orders such as Specific Issue Orders, Prohibited Steps Orders, or Removal From Jurisdiction Orders can be made.
If you are considering relocating with your child, or you are opposing a proposed relocation, Ribet Myles can offer tailored and sensitive advice. We will aim to resolve these issues through negotiation. We can also recommend alternative dispute resolutions such as mediation and arbitration. Where necessary we are there to guide you through Court proceedings, including making emergency applications to protect your children.