Following a separation, people’s lives can often move in very different directions and this can or will often have huge implications for their children. This is especially so if a new partner or new job means that one parent is looking at moving further afield, perhaps to a different part of the UK or abroad.
Provided that everyone with parental responsibility for a child (usually the child’s parents) agrees to a relocation within the UK, there is usually no requirement to formalise this agreement or involve the courts.
However, if parents do not agree, either between themselves or following mediation or other dispute resolution methods, an application will need to be made to court for the judge to decide whether the proposed move can take place.
This issue can often arise if a parent wants to move further afield, and this can make matters more difficult. For example, a move from England to Scotland, or vice versa, can involve long travelling times. Whereas a child may have been able to spend time with both parents when they were living relatively close by, if one parent moves further afield this can make maintaining regular contact more problematic.
England and Wales
Whether a parent wants to move within England or elsewhere in the United Kingdom, the court will consider the same factors. The welfare of the child will always be the court’s paramount concern when considering whether to allow a proposed relocation.
If a parent has sole care of their child or is the only person named as the person with whom a child should live within a child arrangements order, technically the court’s permission for the move is not needed. However if there is a disagreement between parents then either can apply to court. The parent wishing to move will need to make an application for a specific issue order, whilst the parent opposing the move could in the alternative make an application for a prohibited steps order, to block the move.
The historic position of the court was that if an application was made by the parent who was named in a child arrangements order as the person with whom a child lives, then a proposed relocation would usually be allowed, subject to the “test of exceptionality”. This means that a move would only be prevented in exceptional circumstances.
However, a recent Court of Appeal case, Re C (Internal Relocation) clarified the legal considerations on internal relocation to greater align it with the law regarding relocation abroad, which is more advanced and in some respects can be considered more child-centric.
The key points arising from this case are:
- The approach of the courts should be no different whether the proposed relocation is within the United Kingdom or elsewhere;
- The decision should be determined ultimately on the welfare of the child;
- The welfare principle involves a holistic balancing exercise;
- Although the wishes, feelings and interests of the parents are important, they should be viewed in the context of evaluating and determining the welfare of the child;
- Important factors in the decision should include distance and the practicalities of a child spending time with the parent that would not be moving; and
- Guidance which was previously more prescriptive (set out in the case of Payne) is helpful but should just serve as a checklist of the factors to be balanced when making a decision based on the welfare of the child.
At present, the threshold for a move outside of the UK is harder to reach. This is despite the fact that often a move between England and Scotland can be logistically more difficult than, say, a move from England to mainland Europe.
However, the law is not precise in this area and each case is determined on its own merits.
Technically, if a child is already habitually resident in Scotland, a parent can relocate with a child from Scotland to another part of the UK without needing to get a court order to do so. However if no agreement can be reached between parents before a proposed move, as is the case in England, the parent wishing to move would need to apply to court for a specific issue order. Likewise, if a parent wishes to stop a move, they would need to apply for an Interdict against Removal.
Whilst the overriding consideration in Scotland is the same as in England (the child’s best interests), the test in Scotland as to whether to allow a move is different to the test in England and Wales. The court would only allow a relocation in exceptional circumstances. The parent wanting to move would need to show why the arrangements for their child in moving across the border would be better than the arrangements that are currently in place.
The court will consider various factors including the reason behind the application, whether it was economically justifiable, the social reasons for a move and the child’s views on the relocation.
The test is entirely child-centred, whereas in England and Wales, the court may also consider the impact on the parent as well as the welfare of the child concerned. Parents in Scotland have attempted to argue that the effect on their health of a refusal to allow a relocation would impact on the child, but so far such arguments have not been viewed with much sympathy by the courts.
A move within the UK but without consent
The Hague Convention on child abduction cannot be used to order the return of a child between England and Scotland as the UK as a whole is a signatory to the convention.
This means that an application would need to be made in the original country (the High Court in England) to ascertain the child’s whereabouts. The order made would need to be registered across the border and enforcement proceedings would be started. The decision about the child’s return or otherwise would then be made in the court in the original country.
There is no ‘one size fits all’ solution. It is important to allow enough time before a potential move to fully consider how the plans will work, how the children will maintain a relationship with the ‘left behind’ parent and how they will keep in regular contact on a weekly basis, as well as arrangements for extended visits during school holidays.
Facing the prospect of children moving away can be a distressing time for the parent that may be left behind and so an open, frank, constructive dialogue between parents is vital.
The children’s best interests should always be at the heart of the decision-making process.