Child Relocation

In England & Wales a parent is not allowed to remove the children from this jurisdiction unless the other parent with parental responsibility consents or the family court has given permission.

A difficult issue is presented when one parent seeks to move some distance from the other but still within England & Wales, causing potential disruption to the family relationship or the time that the child can spend with a parent.

A family court will always look at what is in the children’s best interests whether it is looking at an internal relocation case or an international relocation of children case. It is guided by the ‘welfare checklist’:

• The ascertainable wishes and feelings of the child (considered in light of his/her age and understanding)
• The child’s physical, emotional and educational needs
• The likely effect of any change in his/her circumstances
• The child’s 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 of her parents and any other person in relation to whom the family court considers the question to be relevant is of meeting the child’s needs
• The range of powers available to the family court

With child relocation cases, the outcome will always be based on the overriding view of the child’s welfare as the paramount consideration, directed by this statutory welfare checklist.

The key to a successful application lies in very careful and tactical planning and ensuring that the evidence covers all factors.

If the parent wishing to move in England & Wales has sole care of the children, or is named as the person with whom the children live under a child arrangements order they do not normally have to seek the family court’s permission to relocate with the children.

It is however important to consider the following points:

• The child arrangements within any existing children order will need to be complied with or you would need to make an application to vary the terms of the children order
• It is often advisable to discuss any relocation with the other parent and to consider the impact of any move on the children, for example, in relation to the distances between you as parents and also schooling.

Common situations are where one parent:

• Has remarried or is in a new relationship, and the new partner’s job or business has been relocated to another part of the country
• Has been offered employment in another part of the country and/or their role is being relocated
• Wishes to return to the part of the country they grew up in to be nearer to friends and family following separation or divorce
• Wants to relocate with the child for lifestyle reasons, for example, wishing to leave a town or city in favour of living in the countryside or the coast.

If you the parent are wanting to relocate with the children and the other parent does not agree, you can ask the family court for permission by making an application for a specific issue order.

If you are the parent not wanting the children to relocate and to stop this, you can make an application for a prohibited steps order.  If the children has already gone and you want them to return, you can also seek a direction via a specific issue application.

The alternative is that the parents may apply for child arrangements orders so the court can determine where the children should live and with whom.

It is always preferable to avoid court proceedings where possible. Mediation might be a helpful way to facilitate communication between you and the other parent. However, it is recognised that a potential move for the children is going to cause such significant changes that it can be difficult to reach a children agreement.

It is important that you seek specialist legal advice from a family law solicitor and to consider what children application should be made, when and what type of evidence you will need.

Typically, the family court will look at an application to relocate and consider the following points:

• The reason why the parent wishes to move. This may be for one of the above reasons, but the court will want to test that the motivation is genuine and that the parent relocating is going to promote the relationship between the other parent and the children, rather than just putting a distance between them.
• Where the children are actually going to live. This may include housing particulars, rental agreements and information about schools, nurseries, day care, GP surgeries, dentist and local amenities such as libraries, clubs, sporting activities, parks etc.. The relocating parent needs to paint a picture about the benefits to the children and demonstrate that the plans are realistic.
• The financial impact of the relocation can be an important point. How is the parent wishing to relocate going to support themselves and the children. This links into how they plan to also financially support the children’s relationship with the other parent bearing in mind travel distances, cost of petrol, any internal flights etc..
• Information about employment, job offers, remuneration etc is always useful. The family court will want to see that the relocating parent has thought this move through and is not going to see but then return back. This would be very disruptive for the children.
• If the motivation for the internal relocation is due to a family connection, evidence of the support network of family or friends is important particularly where this is to support the patent with childcare and financially.
• The relocating parent should also explain the benefits to the children of maintaining a good relationship with the other parent and when the children have dual heritage to explain how this is to be supported and how this can be supported whether in terms of faith, culture, language and so on.
• This issue is often overlooked but the relocating parent should think about and details proposals for contact to the children, taking into account geographical distances, travel arrangements, holidays periods and so on. The family court will want to see that these child contact proposals can work and that the children will be supported in maintaining a good and loving relationship to both parents.
• It is also important to consider the effect on you, emotionally, physically and financially of a refusal to relocate

These types of cases require expert advice and guidance.

To relocate children overseas you need the consent of all parties who have parental responsibility. If you simply go without informing the other parent and obtaining their agreement (preferably in writing) then this may amount to parental child abduction.

International relocation cases of children are very finely balanced. The parent potentially left behind will fear not seeing their children again or having much reduced time with them. The other parent will fear being prevented from moving to their preferred country, very often their home country. Specialist advice from an experienced family lawyer is essential at an early stage to ensure your case is handled correctly from the outset. We have more information about international family law.

In all cases, the welfare of the child is the family court’s paramount consideration. The legal test in England & Wales has centred around the following:

• Is the international relocation application genuine, namely that it is not motivated by some selfish desire to exclude the other parent from the children’s loves?
• Is the relocating parent’s application realistic, namely is it well thought out and in the interests of the children?

If the application is genuine and realistic the family court will consider:

• Is the opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
• What would be the extent of the detriment to the parent left behind and their future relationship with the child, were the relocation application to be allowed?
• To what extent might that be offset by extension of the child’s relationship with the extended family and homeland?
• What would be the impact on the parent wishing to relocate either as a single parent or as a new wife/husband of a refusal of the application to relocate?

In recent years, however, the emphasis has shifted back to more of a welfare principle approach. English cases always seemed to centre on the impact of refusing a parent’s application to relocate but the overriding principle is the question of what is in the child’s best interests. Therefore, the weight attached to the impact of the refusal of the relocation application will not be so great and will not be given precedence over the loss of the parent’s relationship to the child.

A realistic approach, careful planning and detailed preparation are all very important. You will need to look at:

• The impact on the children by the loss of their roots, friendships, wider family and you
• You will need to consider the welfare checklist, and highlight other factors, for example, education, health, recreational activities.

In some cases, your first reaction may be to oppose the relocation application vigorously and aggressively. It is important to consider and weigh up your prospects of success with a specialist family law and children solicitor.

It might be appropriate instead to put safeguards in place to ensure very good future contact before the relocation goes ahead. It is also important to obtain children law advice from a specialist family lawyer in the country of the proposed relocation to highlight any contact difficulties you may encounter once the relocation has taken place. Mirror orders may also be required in some cases.

A holiday is not relocation as such but parents with a “live with“ child arrangements order are allowed to take the children on holiday, but the duration of this time away is restricted to less than one month unless there is additional permission or provision.

But this issue becomes more complicated if one parents wants to travel to a country for an extended period of time. It is fundamental in temporary relocational cases to make sure that it is in fact only temporary and does not become permanent with any change of habitual residence.

If the move is, for example, for a contract of employment, it will be important to examine the contract or any documents and to make sure it is for a fixed period only. If it is for a long holiday, then return tickets must be seen. Caution is needed to carefully check everything and the basis of this temporary relocation, to include the risk of any non return of the children or a later argument that the children are now ‘settled’ in a new country and that is their place of habitual residence.

The basics principles remain the same:

• If you want to relocate permanently with the children overseas, you must either have the consent of the other parent (preferably in writing) or permission of the Court

This is a very specialist area of children law so whether you are applying or opposing a child relocation case, you must have expert family law advice.

When representing a parent who wants to relocate, the most successful cases are well prepared, thought through and planned in advance, with the supporting evidence gathered even before the application is made. We have also many years of experience in opposing internal and international child relocations cases.

We are leaders in this field and ranked in Tier 1 Legal 500, for 2024. Our James Maguire is also a Fellow of the International Academy of Family Lawyers.