Can I move away with the children after the divorce?

If a couple has children, a relationship breakdown can often lead to one of the parents wishing to move closer to their hometown or make a new start in another part of the UK, perhaps due to a job offer or to live with a new partner.

Obviously, these are difficult decisions which will have implications for all the family and need to be considered carefully.  The legal position is different depending on whether the proposed move is to another part of the UK (an “internal location”) or to another country (an “external location”).

External Relocation

Under English law neither parent can relocate abroad with their child without the permission of everyone who has Parental Responsibility for the child or failing this, permission from the court.  If you are relocating to outside the UK with your child and your former spouse or partner does not agree to the move, you are required to apply to the court for a Specific Issue Order.  If the parent takes the child abroad without the other parent’s permission or without a Specific Issue Order, this will constitute child abduction which is a criminal offence and can result in an order for the child to be returned immediately to the UK under the Hague Convention on International Child Abduction.

Internal Relocation

If a parent is relocating within the UK, this is known as internal relocation.  In such a situation the other parent with Parental Responsibility should be consulted about the move because this will impact on where the child will live and attend school and the contact the child will have with the “left behind” parent.  Unlike an external relocation, there is no automatic legal restriction on moves within the UK, however it is important to bear in mind that a parent who opposes the move can prevent the other parent from relocating with the child by making an application to the court for an injunction under the Children Act called a Prohibited Steps Order.  If granted, this would prevent the parent from relocating.  In the case of either an internal or external relocation, a Specific Issue Order, if granted by the court, will legally sanction the move.  Where the proposed move is relatively local within the UK and would not affect the exercise of Parental Responsibility or the contact arrangements, it is unlikely that it would be necessary to apply to the court for a Specific Issue Order.

If it is necessary for matters to be decided by the court, the parent applying to make the move will need to show a well thought-out, child focused plan with relevant supporting documentation.  Over recent years the case law has shown that there is an alignment in the law applied to internal and external relocation cases.  As such, in both types of case, the overriding principle will be the welfare of the child.  The court will make a decision based on what is in the child’s best interests.  In doing so the court will apply the factors set out in the Children Act 1989 under the “Welfare Checklist” by which the following will be taken into account:-

• How the child’s physical, emotional and educational needs will be affected by the proposed move.
• The child’s wishes and feelings regarding the proposed move.
• The likely impact on the child of the change which would result from the proposed move.
• The relevance of the child’s age, sex and background.
• The capability of each parent of meeting the child’s needs.
• Whether the child has suffered harm or is likely to suffer harm.

It is important to keep in mind that relocation cases are extremely fact specific.  In conclusion, any proposed relocation involving a child needs to be carefully considered from the child’s angle.  It is usually preferable (if possible) for the parent seeking the move to liaise with the other parent about their proposed plan.  Even if an agreement cannot be reached directly in discussions between the parents, there are alternatives to court proceedings such as mediation and a collaborative approach, which may enable the parents to reach a solution without the necessity of an application to court.

At Tisshaws, our team of specialist family lawyers can give advice and guidance on the decisions involved and the options available to you. We offer an initial no obligation one-hour appointment for just £50 (incl. VAT), so you can talk through the options specific to your personal circumstances with a qualified family lawyer. To book an appointment, please contact 01444 472700, email [email protected] or complete the form below.