Can you relocate out of England and Wales with a child without permission or is it more complicated than that?
Put simply, the answer is yes, it is more complicated than that. If there is another parent/someone else with parental responsibility then it is necessary to obtain that person's consent before relocating out of the jurisdiction. If consent is not forthcoming, an application to the court is required.
These cases are extremely tricky and on an application, a Judge is faced with a very difficult job. In the case of NJ v OV [2014] EWHC 4130 (fam) the Judge hearing the case said: "the hardest decision a Judge ever has to make in the field of family law is a relocation decision." One of the reasons these decisions are so hard is because the Judge is faced with making a decision that will affect the future lives of the children concerned, while also causing profound disappointment to the parent who is left in the UK following the relocation if the applicant is successful. This was highlighted in Re G (Leave to Remove) [2008] 1 FLR 1587; "these cases are ...traumatic for the parties...so much is at stake. The judges are very well aware of how profoundly the decision will affect the future lives of the children and how difficult it will be for the disappointed parent to adjust to the outcome."
What then does the court need to consider when faced with these difficult cases? The law is clear. The welfare of the child is the court's paramount consideration.
If an application to the court is necessary, what factors should be considered in detail before the application is formally issued?
It is essential for the applicant to think very carefully about the following as examples:
- Motivation for the relocation. The court will need to see that the application is not being made just to impact the relationship of the child and the other parent. The court will also want to see that the relocation is not motivated by a desire to control. A clear explanation for the relocation will be required i.e. is the motivation for the relocation based on a new lifestyle, going home to live close to family, employment opportunities or due to a partner having to relocate?
- What are the existing care arrangements and what is the plan for contact post relocation? It is important for this to be well thought out. The court will be concerned with whether the parent seeking the relocation can be trusted to promote the contact post relocation.
- Travel to and from the new country for the purpose of contact. How will this work in practice? There are a number of important considerations that will need to be addressed including, travel and accommodation i.e. what is the time difference in the new country and how will this impact on contact with the other parent who remains in the UK? Where will the other parent stay when they are visiting the new country for contact? How far away is the other country? How will the child manage the travel? Will the child need supervising during travel and if so, how will this be organised? How will the child's routine be affected? Then there are also important funding considerations such as how the travel and accommodation will be funded.
- Would there be a language barrier in the new country? If so, how would this be overcome?
- What are the connections to the new country?
- What are the visa or immigration requirements of the new country? How does this impact upon the other parent – will they be able to enter the new country. Are there specific documentary requirements that need to be met?
- What are the enforcement options in the new country if the court does make an order? Could an English order be enforced? Can a mirror order be obtained?
A well thought out and detailed child focussed plan is much more likely to be successful than one where the details haven't been considered.
Alternatives to court proceedings such as mediation and/or arbitration should also be thought about before an application is made. If an agreement is reached, we would recommend that a consent order be lodged at Court reflecting the agreement.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.