Following a divorce or separation, it is not uncommon to want to move out of the local area for several reasons, including wanting a fresh start, moving to a more affordable area or moving closer to extended family who will be able to assist with childcare. However, this move may be challenged by the other parent, particularly if they are concerned about the increased distance having a detrimental impact upon their relationship with the child.
Do you need permission to move within England?
This depends. Regardless of whether there is a Child Arrangements Order in place, you do not need the permission of the court or consent of the other parent to move only a short distance away. Whilst the precise geographical distance is not set in stone, permission to move is not generally required if there is to be no change to the child’s school or the contact arrangements.
For relocations further afield, if there is no Child Arrangements Order in place and the other parent does not object to the move, an application to court for permission to relocate is not required.
If the other parent objects to the move, then you will need to apply to the court for a Specific Issue Order in respect of the relocation. The other parent could also apply for a Prohibited Steps Order, to prevent you from moving (as discussed further below).
If there is an existing Child Arrangements Order in place and the Order specifically states with whom the child should live, there is no need for that parent to obtain permission from the other parent (as long as contact can still take place). However, if the move involves a change in schools, the consent of both parents with Parental Responsibility will still be required to enrol the child in a new school.
How do you get the court’s permission, if your ex won’t agree to the move?
The first step is to try to resolve the issue either directly or in a non-court dispute resolution process, such as mediation, solicitor led negotiation or arbitration. The other parent is often worried about the detrimental impact on their relationship with the child, so it is worth considering whether any agreements can be put in place to ameliorate those concerns. If weekday contact will be affected by the move, consider offering more of the weekend or holiday time to ensure the child continues to spend a similar amount of time with the other parent overall. Regular video calls can also be agreed to bridge the gap between direct contact time.
If you are unable to reach an agreement with your ex-partner, then you will need to apply to court for a Specific Issue Order in respect of your proposed relocation. It is important to note that this process can take quite a long time, typically between 6 to 12 months (due to the court’s heavy workload). This is worth bearing in mind if you are hoping to move ahead of the next academic year for example. In very limited circumstances the process can be completed more quickly if it is an emergency and this needs to be raised with your legal team at the earliest opportunity.
What does the court consider?
These applications are not straightforward and the likelihood of success is fact specific. The court is aware that relocating across the country can have significant ramifications for children and uproot them from a familiar environment.
The court will have regard to the welfare checklist as set out in the Children Act 1989. The wording of the welfare checklist is as follows:
• The ascertainable wishes and feelings of the child concerned (considering age and understanding)
• Their physical, emotional and/or educational needs
• The likely effect on any changes to circumstances
• Age, sex, background and any characteristics which the Court considers relevant
• Any harm which the child has suffered or is at risk of suffering
• How capable each parent is (and any other person in relation to whom the Court considers to be relevant) of meeting the child’s needs
In addition, in order to persuade the court that a move is in the child’s best interests, you will need to provide the court with a well thought out plan. This needs to set out details of your proposal on how the child will maintain a meaningful relationship with the other parent. In our experience this is key to a successful relocation application and must be given considerable thought ahead of an application being made. It is very important that the move is not seen as an attempt to defeat the other parent’s relationship, or contact time, with the child.
Your plan should also include details of the following:
• Where your child will go to school/nursery
• The availability of childcare
• Where you will live
• The amenities in the local area
• Opportunity to spend time with family and friends
• How you will fund the move
• Where you will work
• How the move will impact upon the child’s quality of life
As these cases can hinge on the details provided to the court, it is important to work with an experienced Family Law specialist solicitor with an in-depth knowledge of child relocation law to give yourself the best chance of success with a relocation application.
What happens if your child has been moved to another part of the country without your consent?
If you suspect that other parent is planning a move within England without your consent, you can apply to the court for a Prohibited Steps Order to seek to prevent the relocation from occurring. This can be made on an urgent basis and if you suspect that giving the other parent notice of the application for a Prohibited Steps Order will hasten the relocation, the application can be heard without notice to the other parent in the first instance.
However, if a move has already taken place, unlike the position if one parent moves abroad without the other parent’s consent, it is not a criminal offence to move to a different part of England.
If you do not know the whereabouts of your child, there are steps which can be taken via the Family Court to ascertain the child’s whereabouts. The court has the power to make an order for any person to disclose the whereabouts of a child and this information will be disclosed to the court. It is possible to apply for this order on an emergency basis. An application for a Specific Issue Order can then be made to consider the child’s return.
The timing of these application is very important and the prospects of success can depend on how settled the child is in the new area. We therefore advise taking specialist Family Law advice at the earliest opportunity where we will consider the particular facts of your case – please do contact us to discuss your situation in confidence. We will take a child centred, focused on what is in the child’s best interests (which reflects the approach of the court).
