Viewers of this series have been kept on the edge of their seats wondering how Gemma and Simon will be able to co-parent their teenage son, whilst in the throws of a bitter divorce and what seems to be a never ending game of tit-for-tat.
For show newcomers, the first series saw Gemma discover her husband Simon was having an affair with the daughter of a family friend. A confrontation ensued and the final episode of the series saw Simon physically attack Gemma, with the parties’ teenage son Tom witnessing the aftermath.
The second series picks up two years later, with Gemma and Tom living in the family home. Simon has been prohibited from contacting Gemma. However, Simon has maintained a relationship with Tom. In the first episode, Simon and his new family move back to the local area, to a lavish property and lifestyle which Simon could not afford during his marriage to Gemma.
On his return, Simon begins to undermine Gemma’s relationship with Tom. As a result of Simon’s manipulation, Tom moves out of the family home to live with his father. However, matters unravel when Tom is accused of sexually assaulting a classmate. Simon’s new partner no longer wishes for Tom to live with them, leading Tom to return to his mother who suggests moving away from the area. Gemma texts Simon letting him know that she is moving and leaves, without giving him any chance to respond.
What if it were real?
Gemma and Simon have been unable to agree where Tom should live and when the other will spend time with Tom. Their efforts at communicating have failed, with Simon using Tom as leverage is in his campaign against Gemma.
Whilst it can be helpful to negotiate child arrangements (previously contact and residence) in mediation, that would not be suitable in this case as a result of the domestic violence. However, it would be open to either Gemma or Simon to make an application to Court to determine the appropriate arrangements.
When considering an application, the child’s best interests are the court’s paramount consideration. In considering what is in a child’s best interests the court will apply the welfare checklist, which requires the Judge or magistrates hearing the case to consider all of the following factors before making a decision:-
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- his or her physical, emotional and educational needs;
- the likely effect on him or her of any change in his circumstances;
- his or her age, sex, background and any characteristics of his which the court considers relevant
- any harm which he or she has suffered or is at risk of suffering
- how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- the range of powers available to the court under the Children Act 1989 in the proceedings in question.
It is worth noting that Tom is of GCSE age (likely to be 15/16 years old) and the Court is therefore likely to take the view that Tom should be given a considerable say in where he wishes to live. The Court will not make an Order in respect of a child over 16, save for in rare circumstances, for example, where a child does not have the mental capacity of a 16 year old.
Gemma’s unilateral decision to move Tom out of the local area without Simon’s consent is likely to be frowned upon by the Court. Gemma’s decision to take Tom out of school so close to his exams is no doubt going to be detrimental to him from an educational perspective. The Court’s view is that a parent should not relocate a child without the other parent’s consent, save for in emergency circumstances when an urgent Court application cannot be made. In the present circumstances, it would be open to Simon to apply to the Court for a Specific Issue Order, for Tom’s immediate return.
When considering an internal relocation, you should speak to a solicitor early on to consider your position. The welfare checklist will be applied in every case, but the outcome of the application will be different depending on your individual circumstances. At Rayden Solicitors we have a wealth of experience and expertise in Children Act applications, and can provide you with discreet and confidential advice, and our top expertise