Relocating after separation or divorce, with children: what you need to know
Family break up through separation or divorce is never easy and often results in intractable disagreements about how your children should be raised. One area that is particularly difficult is relocation, which could have huge implications for the relationship between the children and the parent left behind.
There are lots of reasons why someone might want to relocate after such a tumultuous change in their life. They may want to be closer to the support network they had before they were married. They may no longer be able to afford to live in the area on their reduced income, particularly with children to look after. They might want a fresh start, perhaps with a new partner. Or it may be a combination of all these reasons and more.
But if you do decide to relocate, or if your ex-partner has told you they want to do so, then it’s important to understand what the law says about what you can and cannot do. The court process can be swift, or it can be excruciatingly slow, so it’s important to think ahead and this is where divorce lawyers can help.
In our increasingly globalised world, often families can break down across international borders. Relocating abroad has huge implications for your children and your ex-partner and while many of the rules discussed here are the same regardless of where you’re planning to go, the law is more prescriptive if you want to leave the UK. You can also be prosecuted for child abduction if you try to leave the country without following the proper process, so the ramifications need to be understood.
What does the law say?
The family court system is focused on getting parents to cooperate wherever possible and judges will not look kindly on any underhand tactics. It is therefore generally good practice to keep everyone informed of your intentions and consult the relevant people at the earliest reasonable opportunity.
Before going into what the law says, it is helpful to understand a few important definitions and bits of law.
The Children Act 1989 is the most important piece of legislation in this area. It includes two principles that it is helpful to understand at the outset. The first is ‘parental responsibility’, which means all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to their children. If you and your ex-partner were married or in a civil partnership when your children were born or adopted then they will automatically have parental responsibility, but it can also be acquired.
Second is the ‘paramountcy principle’, which means that in any family law dispute involving children, the court’s primary consideration will be the welfare of your children and what is in their best interests. There used to be other rules for relocation, but these have now largely been sidelined in favour of the paramountcy principle.
Third is ‘Child Arrangements Orders’ (or CAO) which were introduced by the Children and Families Act 2014 to replace ‘residence’ and ‘contact’ orders. If you and your ex-partner had residence or contact orders in place these will remain valid as a CAO. A CAO can set out who your child or children live with, where they live, and how often they spend time with each parent.
Fourth, ‘Specific Issue Orders’ and ‘Prohibited Steps Orders’ are the procedures the family court uses to control what you can and cannot do without consent from your ex-spouse.
A Specific Issue Order gives directions for the purpose of determining a specific question or dispute which has arisen between those with parental responsibility. These orders are positive, they permit a parent to do something, or require that something be allowed.
A Prohibited Steps Order prevents any step from being taken by a parent without the consent of the court.
Finally, the value of gaining the consent from your ex-partner in relation to any decision affecting your children cannot be overstated. You can relocate with your children anywhere in the UK or abroad if you gain the consent of everyone with parental responsibility for your children.
However, relocating without consulting your ex-partner is not advised because they can apply to the court for an emergency Prohibited Steps Order and could prevent you from moving or delay it significantly. If you cannot gain their consent then you should, therefore, apply for a Specific Issue Order allowing it.
In either case, the court will consider your application based on what is in the best interests of the child.
Relocating with your children abroad
Under English law you cannot take any child out of the UK without the consent of everyone who has parental responsibility, to do so would be child abduction under the Hague Convention and a criminal offence in the UK.
If you cannot gain the consent of your ex-partner you need to apply for permission of the court. This is often described as ‘leave to remove’.
Effect of a Child Arrangements Order
If you already have a CAO in place, it may specify where you and your children must live or provide for contact and visitation rights for your ex-partner. If this is the case, you may need the permission of the court to relocate in the UK as well as abroad, because you will need to convince the court that your ex-partner’s visitation rights will not be unreasonably impeded or because the CAO will need to be amended to accommodate your proposed location.
Requirement to attempt mediation
Before making an application to the courts you must generally seek to resolve the dispute through mediation. Mediation involves sitting down with an accredited mediator to try to reach joint decisions.
You don’t have to go to mediation in order to make an emergency application or if there are child protection issues and social services are involved. Mediation may also not be appropriate if there is a history of domestic abuse.
Even if you consider mediation an appropriate starting point, your ex-partner may not agree to attend mediation, as it is a voluntary process, in which case it cannot proceed.
Preparing for the relocation hearing: how the court decides
Whether you are asking the court for permission to relocate in the UK or aboard, or seeking to prevent either from happening, the arguments you need to prepare are the same. The court, in either case, must consider what is in the best interests of the child.
First, the court will ask whether it is a genuine application and not an attempt to prevent your children’s other parent from seeing them. You should prepare a clear explanation of why you want to relocate focused on how it will be beneficial for the children. You should include information on how you will accommodate continued contact.
For example, if you want to relocate because of a new relationship you should focus on the merits of a stable family life with your new partner, but equally, research the cost of travel and decide on a reasonable visitation schedule to accommodate this. Consider where your ex-partner will stay when they are visiting you, e.g. can they afford a hotel? You can also consider how indirect contact could be facilitated, such as skype or phone calls, and how any time difference may affect this.
You also need to demonstrate that your plan to relocate is well thought through and your children will be at least as happy in the new location. Will there be language barriers and if so how will you help them to adapt? Are there suitable schools in the new area, and how do you enrol your children?
The court will take into account the ages of the children involved and how socially connected they are to their current area. If the court deems them old enough to express an informed opinion on the relocation then they are also obligated to take their views into account, although they are not bound to follow them.
What the non-resident parent can do
If you have parental responsibility and your ex-partner wants to relocate with your children, what you can do will, similarly, depend on your relationship with your ex-partner since you separated and the particular circumstances of the case.
At one end of the spectrum is an embittered ex-partner who gives you very little notice that they are relocating in the UK, or who wants to go abroad and attempts to blackmail you into giving your consent. In these situations, you can immediately seek an emergency prohibited steps order to stop them. In contrast, two parents who parted amicably and have since managed their shared care cordially may, assuming sufficient notice is given, begin to gather evidence to resist each other’s arguments. These will first be useful in persuading a mediator to support your views, and will then be applicable again if the matter does reach the family court.
The prospect of your ex-partner preventing you from moving on with your life can be daunting; so too is the fear of having your children taken away from you. Reconciling the wishes of two estranged parents is notoriously difficult and it is usually impossible to avoid the idea of winners and losers; the most important consideration is the children involved, and what is in their best interests notwithstanding the conflict between their parents.