We appear to be seeing light at the end of the pandemic tunnel but the last two years have been very revealing and opportunities for reflection on our pre-pandemic lives have steered, or forced, us to take life-changing steps.
So, what does this mean for co-parents when one is looking to relocate with their children?
Obligations of the primary carer
Caselaw suggests that the parent with primary care does not have a specific obligation to apply for permission from the Court to relocate within the UK (subject to any court orders that might be in place). That said, anyone with parental responsibility has a right to be consulted in relation to important decisions such as where their children live and what school they attend. Any relocation is without doubt going to result in a new school in most cases.
The case of A v A (2004) provides helpful guidance for parents to distinguish when they can make decisions independently, when they should at least inform the other parent and when they should both inform and consult the other parent before making decisions.
Relocating is certainly an important decision and one that we would never recommend that a parent make a decision upon without consulting and obtaining permission from the other parent.
Whilst there is no legal obligation under UK caselaw on the primary carer to apply for permission from the Court to relocate within the UK, it is a matter of good and responsible parenting to notify the other parent and to provide full details of the proposed move well in advance of the move itself. For instance, if the relocating parent was dealing with the move properly it would be reasonable to expect them to inform the other parent that they were planning on a move and then to involve them in decisions as regards schooling, housing etc., as well as engaging in discussions relating to the time the ‘left behind’ parent will have with the children and how this would need to be adapted in light of the distance.
Caselaw and the Court’s view
The overriding principle is the welfare of the child(ren) and this will always be the Court’s paramount consideration. The Court must consider the welfare checklist as set out in Section 1(3) of the Children Act 1989 and undertake a full evaluation taking into consideration all of the relevant facts.
In addition, the considerations referred to in the leading authorities of Payne -v- Payne (2001) and MK -v- CK (2012) are used as a helpful checklist for Judges to weigh and balance when determining their decision as to how this would better serve the welfare of the child(ren).
In order to successfully proceed with an application to relocate
a child, then the evidence provided to the court must cover all factors, including:
- Reasons for wanting to relocate;
- Where the child and parent with care will live, including full information of the amenities and maps of the area;
- How the move is to be funded;
- Information about what the area has to offer the child, including nurseries, schools, after school and sports clubs, medical facilities etc.;
- How far the carer and the child will be from a support network of friends and/or family members;
- Full details of proposed employment, working hours and care of the child during working hours and taking to and from school and nursery;
- Impact on changes in language and culture on the child;
- Full information of schools and nursery schools, whether a place would be available, what fees and continuity or interruption of existing education and;
- Proposals for contact between the child and the other parent and who will pay for it.
Applications for preventing a relocation
Provided the parent affected by the move has parental responsibility and does not consent to the relocation, they have the following options:
- Apply for a Specific Issue Order (“SIO”) under Section 8 of the Children Act 1989 (“CA 1989”). This allows the court to make a decision on the issue of the proposed relocation.
- Apply for a Prohibited Steps Order (“PSO”) under Section 8 CA 1989 to prevent the move.
- Seek a condition to a Residence Order’ e.g. where the affected party applies to have imposed a condition that may prevent a parent moving the child to a particular geographic area.
In these circumstances the burden is on the ‘left behind’ parent to justify the need for the above orders. Moreover, these options do not have to be exercised in isolation of one another and, depending on the circumstances, it may be necessary that all three Orders are applied for.
Proposed relocation outside of the UK - if a ‘lives with’ child arrangements court order is in force, a parent may not remove a child from the UK without the written permission of every person with parental responsibility (or permission granted by a Court). There is an exception which allows the person named in the Order to remove the child for a duration of time of less than a month.
In the absence of a ‘lives with’ court order, although the CA 1989 does not require written permission prior to a child being removed from the UK, failure to seek such consent could give rise to a criminal offence of child abduction.
Shared cases and primary carer cases – there is no distinction between shared care case and a case where there is a sole ‘lives with’ order. The Court must look at the circumstances and facts of the face in order to make a decision as to whether a relocation is in the child’s best interests. Having said this, a shared ‘lives with’ order could demonstrate that the child(ren) have a significant attachment to both parents and this could make an application for relocation more difficult.
In summary, naturally there are many day-to-day decisions where it would be both unnecessary and unrealistic to wait for the other parent’s permission. Relocating children is not one of these. It is an issue that can (very quickly) potentially result in expensive and time-consuming actions being raised in court. Whether you are the relocating parent, or, the parent being left behind, we can assist you and help you to explore your options to avoid stressful contested proceedings.