In this article, Senior Partner Katherine Rayden has teamed up with Trainee Solicitor Ashley Nkemakolam to discuss the law surrounding relocation and wrongful retention in light of the ongoing situation with Joe Jonas and Sophie Turner.
Relocation cases involving children are complex and emotionally charged, involving a delicate balance between a parent’s wish to move to a new area and the best interests of the child.
When celebrities like Sophie Turner and Joe Jonas are involved in such cases, they shine a spotlight on an issue that affects many families across England.
Can you move away from your home with the children?
You can only move away from your home with the children if the other parent agrees or if you have the consent of the Court. There is no defined minimum distance whereby this consent is not required as the Courts have made it clear that even a distance of a few miles could involve a different local education authority and therefore school.
Where is home?
Families can often have several homes in different countries and so it is always important to establish where the children are habitually resident as this will determine which Court has jurisdiction.
The Courts have made it clear that there is no defined period of time for a child to live in country before they are habitually resident but six months is often viewed as an appropriate time.
What steps can be taken?
Wrongful retention
In the Joe Jonas/Sophie Turner case, it would appear that she has issued proceedings in the US claiming that the children have been wrongfully retained in the US and that (presumably) their home is in the UK. These applications are often made when, for example, the children travel abroad for a holiday with a parent and that parent refuses to return them.
This application would involve an application under 1980 Hague Convention.
Permission to relocate
If there is an agreement as to where the children habitually reside and one parent wishes to move away with the children, then permission from the Court will be required.
This is a complex application that involves a great deal of preparatory work to demonstrate that the relocation plans have been thoroughly thought through in terms of the child’s relationship with both families, their home (s), schools, friends etc.
The Court’s power
The Court will need to determine what is in the best interest of the Child. In the past, decisions on relocation were governed by the case of Payne v Payne [2001] EWCA Civ 166 which set out a two stage test concerning the motivation for the move and the impact on the child’s relationship with the non-resident parent. This often meant that a parent’s request to relocate would be granted.
In more recent years, the Court have been more reluctant to grant relocation applications if there was a shared care arrangement given the impact that any move would have.
Mediation and Alternative Dispute Resolution
Mediation has proved to be extremely useful in resolving a number of issues even when one may have thought that there can only be a “winner”.
We will often refer clients to mediation even to resolve complex relocation issues in order to assist them in obtaining a solution that will avoid costly and antagonistic litigation.
Legal advice
As will be clear from the above, navigating relocation cases are highly fact-specific and require a great deal of expertise in order to prepare the request, ascertain the correct Court and work towards an overall resolution.
At Rayden Solicitors, we can provide tailored legal advice, support the collection of relevant evidence, and advocate for our client’s position during court proceedings.
If you require legal advice regarding matter of wrongful retention/relocation, please do not hesitate to get in touch with one of our specialist solicitors.
