Written by David Lillywhite

Legal Director at Burgess Mee

David is a Resolution-trained collaborative lawyer and mediator and deals with all types of family law work including advising upon divorce & separation, matrimonial finance.

Upon the end of a relationship, it is not uncommon to find a proposed relocation – whether internally (i.e. within the UK) or abroad – adding an extra dimension to the matter. This could be for any number of reasons: a better support network; family connections, improved employment prospects or a new partner.

If both parents can work together – through mediation or with the support of a family counsellor – and come to an agreement through constructive, amicable dialogue then that is the ideal outcome, cementing a foundation that the whole family can build upon.

However, there are inevitably times when both parents will reach an impasse and other options will need to be explored. That does not necessarily mean that the Court needs to be involved (an internal relocation can be dealt with in arbitration, a form of non-judicial dispute resolution involving an ‘arbitrator’ who will decide the issue. Although it shares many similarities with the Court process, it is much less formal) but if it becomes required it should not be viewed necessarily as an outwardly hostile step. Often parents will benefit from judicial oversight and a timetable being put in place for the resolution of the matter.

In the event that the possibility of a relocation arises, you should remember that – provided you have parental responsibility (PR) – you are still entitled to be consulted about the major decisions in your child’s life such as their education, health care and religion. There is still have an important role to play in your child’s life and sometimes circumstances will dictate that the family’s situation may change.

If both parents can work together – through mediation or with the support of a family counsellor – and come to an agreement through constructive, amicable dialogue then that is the ideal outcome, cementing a foundation that the whole family can build upon.

If your former partner has proposed an internal relocation with the children, strictly speaking they do not need your permission except in the event of a disagreement whereas a move abroad will require consent by default. If you agree to the relocation, you should still be consulted as to the resident parent’s future plans so that you can make an informed decision. This should include how contact will be facilitated so that you are still able to play a role in your child’s life.

If your former partner is still intent on relocating against your wishes, one or the other will need to make an application to the Court. Depending on your position, this may be for a Specific Issue Order (to facilitate the move) or a Prohibited Steps Order (to resist it). Both may also look to make an application for a Child Arrangements Order to decide who the children should live with and decide how much time they should spend with the other parent.

How will the application be dealt with? Practitioners have been helped considerably in the last few years by the emerging jurisprudence surrounding relocation cases, including the leading case of Re C (Internal Relocation) (2015) EWCA Civ 1305, but also K v K International Relocation: Shared Care Arrangement), Re F (A Child) (International Relocation Cases) [2015] EWCA 882 and latterly Re K [2016] EWCA Civ 931.

There is scant space in this article to explore at length the impact of Re C but it helpfully brought all of the current case law together. Very broadly, it stated that the basic approach is the same across both internal and external relocation cases: the welfare of the child is the Court’s paramount consideration having regard to the factors set out in s1(3) of the Children Act 1989 (the paramountcy principle can be found – almost obviously – at s1(1) of the latter). These are as follows:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  2. his physical, emotional and educational needs;
  3. the likely effect on him of any change in his circumstances;
  4. his age, sex, background and any characteristics of his which the court considers relevant;
  5. any harm which he has suffered or is at risk of suffering;
  6. 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;
  7. the powers available to the court in the proceedings

While the wishes, feelings and interests of both parents (and the subsequent impact of the decision) is important, these have to be viewed in the context of the welfare of the child. This is a specific reference to the guidance established in the case of Payne v Payne [2001] EWCA Civ 166 (and now nearly two decades old) which placed greater emphasis on this (though not at the expense of the child’s welfare which remained the paramount consideration of the Court). In Re C, the guidance in Payne (which can be found at paragraph 40 of the latter judgment and is not reproduced here) was described as “a helpful guide” but only as part of the much wider exercise referred to above.

As part of any application, the parent proposing the relocation will need to provide a comprehensive and well-thought plan of the proposed arrangements for any children, which will include details such as the intended plans for their education, child care arrangements whilst that parent is at work and their contact with you. Neither making or resisting an application for relocation is an insignificant undertaking – legal advice should therefore be sought as soon as possible in both cases so that your options can be explored properly.

Many parents feel frustrated when a former partner announces their intention to move away with their child. However, remember that the situation does not lend itself to any foregone conclusion. While litigation remains an option available to you, both parties should try to work together, with the aim of putting your child’s interests first.  Although this can be difficult if there remain issues between you and your former partner, putting your child’s needs before your own will always benefit the family in the long-term.


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