Divorce is a tricky business for all involved, especially when children are involved. Following a divorce, people want nothing more than to move on for a fresh start. But before you go rushing off to relocate, be it closer to where you grew up or somewhere completely new, you need to understand your (and your former partner’s) rights around relocating your child(ren).
At the heart of the law governing child relocation is the simple principle of “what’s best for the child”, in other words, the child’s welfare. While this sounds simple, it can be a very complex legal issue and it’s highly recommended that you seek the advice of expert family law solicitors before making any significant decisions.
Relocating a child abroad, and sometimes even within the UK, requires the consent of anyone with parental responsibility for the child (usually the other parent). Failure to obtain the relevant permissions can be costly, both financially and emotionally, and could lead to the courts ordering you to return. Relocation may also have an impact on pre-existing childcare arrangements like maintenance payments, which adds further complexity to the matter.
Read on to understand your rights when it comes to relocating with your child(ren), or if your former partner is planning to relocate with your child(ren).
Is permission needed?
At first glance, English and Welsh law only requires you to obtain permission to relocate from your former partner if you are planning to move abroad. But scratch below the surface and you’ll soon realise that the situation is more complicated than that.
If you’re planning to move overseas with your child(ren), you must obtain permission from everyone with parental responsibility or obtain a Court Order. Moving your child(ren) overseas without the required consent would be considered child abduction, which may lead to court proceedings to have the child(ren) returned to the UK and potentially criminal proceedings against you.
While permission is not explicitly required for a move within the UK, it remains a good idea to communicate with your former partner and seek consent. How far away you move with your child(ren) may have a significant impact on your former partner’s relationship with your child(ren). In some cases, the court may intervene in the interests of your child(ren) and require you to return your child(ren) to their original location.
Will I need to go to Court?
Going to court to resolve childcare arrangements is typically a last resort after exploring all other avenues to reach an agreement.
If you’re able to agree on the arrangements directly with your former partner, then there’s no need to go to court. However, you may still wish to have your informal agreement written into a Child Arrangement Order, so that it becomes legally binding. This can offer you some protection just in case your former partner changes their mind later on.
Where it’s not possible to reach an amicable agreement with your former partner, then you can seek mediation. A mediator is an impartial third party, who will help you and your former partner discuss the issues and negotiate to reach an agreement.
Finally, if it’s still not possible for you to reach an agreement, then you’ll need to apply to the court for a decision.
What actions can the Court take?
The court has the power to grant or refuse your application, which will ultimately allow your child(ren) to relocate or not. Once the court has reached its decision, a court order is prepared to make it legal.
What does the court take into consideration?
The English and Welsh courts take the view that both parents should be involved in their child(ren)’s life unless there are exceptional circumstances.
When making its decision about relocation, the court will consider all of the factors listed in Section 2.1 of the Children Act, which is also known as the “welfare checklist”. These include:
- The child’s wishes and feelings (taking into consideration his or her age and understanding)
- The child’s physical, emotional, and educational needs.
- The likely effects on the child of the change.
- The child’s age, sex, background, and any characteristics that the court considers relevant.
- Any harm that the child has suffered or may be at risk of suffering and
- The parent’s ability to meet the child’s needs.
The court will also consider whether your reasons for relocating are reasonable and practical. Hence, it’s crucial to seek legal advice to help you identify the strengths and weaknesses of your case and help you to prepare accordingly.
Can the court prevent relocation?
While the court has the power to prevent the relocation of your child(ren), it will only do so if the move is not deemed to be in your child(ren)’s best interest. A few (non-exhaustive) examples include:
- If the relocating parent has no plans about where they’ll work or where they might live.
- If no plans have been made for the child(ren)’s education or
- If the move would have a significant negative impact on the relationship between the child(ren) and their other parent.
A court can also order the relocating parent to return with the child(ren) to their original location if consent had not been sought from the other parent, prior to the move.
Can my child be relocated without my consent?
In England and Wales, your rights with respect to your child(ren) hinge upon whether you have parental responsibility. The following have automatic parental responsibility:
- Married fathers and
- All fathers named on their child(ren)’s birth certificates, post-December 2003.
Parental responsibility is less clear-cut for same-sex couples and seeking advice from family law solicitors is highly recommended to help you to understand your rights with respect to your child(ren)’s relocation.
If you have parental responsibility for your child(ren), then they cannot be relocated without your consent especially if your child(ren)’s living arrangements have not been specified in a Child Arrangement Order. By contrast, if a Child Arrangement Order is in place, then you may need the court’s permission to relocate your child(ren).
Can I prevent my child relocating?
If you haven’t provided consent for your child(ren) to be relocated, then your former partner must seek a court order for the move. However, if your former partner has already made the move without your consent, there are steps you can take to reverse the move in the best interests of your child(ren).
To prevent the relocation, you would need to initiate court proceedings and apply for:
- A Child Arrangements Order; and/or
- A Prohibited Steps Order.
If the relocating parent already has a Child Arrangements Order that states that the child(ren) should live with them, then a court will only prevent them from moving to another part of the UK in exceptional circumstances. A move abroad, however, will be a more complex legal issue as agreements made in the UK may not be valid in the country that your child(ren) is moving to.
Child Arrangement Order
The Child Arrangement Order is a legally binding document that regulates your child(ren)’s living arrangements. It covers aspects such as who your child will live with, how much time is spent with their respective parents and contact time with their parents and other people, such as their grandparents.
The terms of the existing Child Arrangement Order may prevent a relocation with your child(ren), and a new child Arrangement Order would need to be sought to cover the new living arrangements.
Prohibited Steps Order
By seeking a Prohibited Steps Order, you can stop the relocation from taking place, whether temporarily or permanently. The Prohibited Steps Order is a legally binding order that prohibits a person from carrying out a specific activity in relation to your child(ren), such as changing their school or taking them out of the country.
Relocating with your child(ren) after a divorce can be a complicated situation and it’s important to know your rights. At Waldrons, we have an expert team of family law solicitors who can help you, whether you’re seeking permission from your former partner, challenging their plan to relocate, or looking for the return of your child(ren) if they’ve been relocated without your consent. Get in touch with us today to discuss your circumstances and let us help you achieve the best possible outcomes for you.
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Last reviewed on 11/07/23 by Alka Wood who is a Solicitor