Navigating the Legal Maze for Relocation as a Separating Parent

Relocating with children following a separation or divorce can be highly complex as well as an emotional process. When parents are seeking to relocate within the UK or abroad with their child(ren), an application seeking the court’s permission to do so is referred to as ‘’leave to remove.’’ In this piece, I look at applications for relocating within the UK and overseas.

Relocating within the UK

Applications tend to arise in the following circumstances.

1. One parent has remarried/has a new partner and their job has been relocated to another part of the country;
2. One parent has been offered employment in another part of the UK;
3. One parent wishes to return to live near their family; or
4. One parent wishes to relocate for lifestyle reasons.

To make the application for permission to relocate within the UK, you must apply for a specific issue order (SIO) under section 8 of the Children Act 1989. If you are attempting to stop an internal relocation you need to apply for a prohibited steps order (PSO).

The outcome of either application will be based on the welfare of the child. The court is unlikely to prevent a parent from choosing where they live within the UK unless the child(ren)’s welfare requires it. The court undertake a welfare analysis, which accounts for the impact on the parent wishing to move and the consequential impact on the child(ren), leads to that conclusion.

Relocating overseas

An application to remove your child(ren) from the UK is made by either:

1. A specific issue order if there is no Child Arrangements Order (CAO) in place regulating living arrangements; or
2. An application for permission to remove your child(ren) from the jurisdiction where there is a CAO regulating living arrangements in place.

Once the other parent has been notified of your application, they may take steps to prevent you from removing the child(ren) from the jurisdiction until the court have reached a decision. They may ask you to formally surrender your child’s passport pending the outcome of proceedings. They may also request, alongside this, an undertaking (a legal binding promise made to the court) that you will not take steps to obtain replacement travel documents for the child(ren).

The other parent may also make a cross application for the child(ren) to live with them. If so, the applications will be joined so the court will hear them together and make determinations at the same time.

If the other parent removes the child from the UK without consent or permission, this is classed as wrongful removal or abduction. An application for the summary return of the child(ren) would need to be made. You can find further information on child abduction in our previous post  here.

The Court’s Approach

The Court will scrutinise the relocating parent’s plans: the Courts will evaluate the proposed plans by reference to their proportionality. This is because of the serious consequence any move would have upon the welfare of the child as any move could be detrimental to the child(ren)’s relationship with the other parent.

The Court’s approach is to consider the welfare of the child(ren). The Court will undertake a holistic welfare evaluation and often look to the welfare checklist, which includes:

1. The ascertainable wishes and feelings of the child(ren);
2. Physical, emotional and educational needs of the child(ren);
3. The likely effect on the child(ren) of any change in their circumstances, such as
   1. Changes to housing, schooling, positive effects of the move, their relationship with the left behind parent and positives/negatives of the proposed destination country in terms of environment, education and links with family.
4. The child(ren)’s sex, age and background;
5. Any harm the child(ren) has suffered or is at risk of suffering; and
6. The capability of the applicant meeting the child(ren)’s needs.

Each case will be decided on its own facts.

You should always try to reach an agreement with the other parent about removing the child(ren) from the jurisdiction. If this is not possible then mediation should always be your first option to try and narrow the issues and reach an agreement, before an application to Court is made.

The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice. The content of this article contains general information and may not reflect current legal developments, verdicts or settlements.