This is the first of a two-part article dealing with the issues surrounding one parent’s decision to relocate with their child away from the area they currently live in.
This article deals with the relocation from one part of the UK to another part; ‘internal relocation’. The UK is defined for these purposes as being England, Wales and Scotland, together with Northern Ireland. However, it does not include the Isle of Man or the Channel Islands.
Internal relocation cases are some of the most difficult cases the family courts have to tackle. As you would expect the issue generates strong feelings at what is already likely to be a difficult time for the family.
For many separated parents it can feel like a ‘loss’ all over again. They might be concerned that the time they spend with their child will be reduced significantly and will impact on their future relationship. It might create financial pressure having to travel long distances.
The suspicion might be that the proposed move is a deliberate attempt to dilute the other parent’s relationship with the child or that the other parent is “running away”. For the parent wishing to move, there might be feelings of injustice that they are unable to get on with their own lives and careers; and their basic human right to freedom of movement within their own country is being compromised.
The desire for internal relocation can arise for a number of different circumstances. The most common of which are: –
- The parent has been offered employment in another part of the UK and/or their job role is being relocated;
- The parent has re-married or is in a new relationship and the new partner lives in another part of the UK;
- The parent wishes to return to the part of the country they grew up in to be closer to their friends and family following separation;
- The parent wants to relocate with the child for lifestyle reasons e.g. moving from a town to the countryside or coast;
- The parent wants to relocate to start afresh.
Surprisingly, there is no rule preventing someone moving from say Brighton to Edinburgh. However, what we do have is case law providing guidance about this area of the law and the correct approach to take to resolve internal relocation disputes. There are also issues such as a change of school that will impact on a parent taking pre-emptive action.
Of course, it is important to note that if both parents agree to an internal relocation, there is no issue. However, restrictions on time with their children, geographical and financial issues are often at the forefront of parents’ disagreements. Whatever the outcome it is a matter of good and responsible parenting to provide the other parent (and all those with parental responsibility) with details of the proposed move well in advance of the move itself. This is vital if a change of school is planned as that is an issue of the highest importance for the children involved.
Specific Issue Order
If an agreement cannot be reached, then the parent wishing to relocate needs to make an application to the court for a Specific Issue Order under Section 8 of the Children Act 1989. The parent who wishes to stop an internal relocation must apply for a Prohibited Steps Order under the same Act. Before making the application parents should attend a MIAM (Mediation Information Assessment Meeting) to see if matters can be resolved through Mediation.
Until recently the considerations a court had to take into account when dealing with internal relocation cases were similar, although far less stringent, to those for external relocation cases (which will be covered in part two of this article).
Previously the law had suggested that a left-behind parent may have to demonstrate ‘exceptional circumstances’ in order to prevent a move – a test which does not apply in external relocation cases. This was challenged in the recent case of Re C (A Child) .
The Court of Appeal in this case effectively aligned the law between internal and external relocation cases making it clear that ‘exceptionality’ forms no part in the principles to be applied. As such, the overriding principle in both types of cases is the welfare of the child and in reaching its decision the court is required to carry out a ‘global, holistic’ evaluation of the circumstances of the case including the proposals of both parents and the wishes of the child. It was emphasised that the court should always approach the case to ‘see if there is a way in which the move can be made to work’ so as to ensure that the parents’ conflicting concerns are accommodated as far as possible.
So, the court will need to base its decision in an internal relocation matter upon the test that the child’s welfare is to be the principal factor – the “paramount consideration” – in any decision. This is known as the ‘welfare principle’ and provides the foundation stone of how the court deals with Child Arrangement Orders. The relevant factors contained within the welfare check list set out at section 1 (1) Children Act 1989 will apply.
In short, and with the welfare principle firmly in the court’s mind, the court must look at all the circumstances and facts of the case in order to make a decision as to whether relocation is in the child’s best interests. As with all these sorts of cases planning and preparation of the application will be key. That planning should have, at its heart, the arrangements for the children to be spending time with their other parent when that has been a regular feature of the child’s life.
Please contact us to discuss your circumstances if you are thinking of relocating with your child(ren) away from the area they currently live after a separation or divorce.