The Challenges When Parents Separate And One Wants To Relocate With Their Child

David Lister, Family Law Solicitor at Irwin Mitchell, outlines the difficulties that arise when parents separate and one of them wishes to permanently leave the country, taking their child with them.

The emotional strain of a divorce or separation, particularly when children are involved, can be devastating.  When parents choose to split-up, more often than not they will continue to live and work in the same geographical area. However, it is becoming more and more common that one parent wishes, or is required to relocate, often thousands of miles away. 

Employers can require their workers to transfer to an office in another country, or a parent who once moved to England from another country to be with their partner may wish to return home, to their family and support network, after their relationship has ended. 

In these situations, what should happen to the children?

This year I have already been instructed in three relocation cases, where my clients are either seeking to relocate with their children, or prevent their ex-partners from doing so. I have also been instructed in two cases recently where one parent did not have the permission of the other to relocate. They have been both ordered to return the child to the UK, at great financial cost to them, and had their passports seized by the police. 

The Court of Appeal recently clarified the principles that must be taken into account when a Judge is tasked with deciding whether or not the parent wishing to relocate should be given permission to remove a child, or forced to remain in this country. 

Ultimately the child’s welfare is paramount. That is the only principle in relocation cases. A holistic, evaluative approach must be taken, looking at each parent’s proposals side by side, balancing the pros and cons in terms of the child’s welfare and listening to what the child has to say.

In 2015 the Ministry of Justice commissioned the Voice of the Child report, which focuses on the importance of children playing a central role in proceedings that will fundamentally define their future.  I am often asked ‘how old does my child have to be before she can decide for herself?’ The answer is it varies, depending upon the level of maturity shown by the child. Even in cases where children appear old enough to make their own decisions, their wishes and feelings are not always determinative.

The relocation of a child to a foreign country where there is the possibility of a fundamental interference with the relationship between one parent and a child requires that the parents' plans be scrutinised and evaluated by reference to proportionality, in view of the engagement of their right to a family life and consideration must be given to any erosion in the quality of the relationship between the child and the parent who is being left behind.

I have seen cases where a parent has struggled to effectively co-parent a child with their former partner when living just a few miles apart, leaving  Judges wholly unconvinced that they would be capable of promoting and maintaining a relationship between the child and the parent who is left behind where the distance between them would be much greater. As a result, their applications to remove the child have been refused, leaving them trapped, with no friends or family for support.

Judges are keen to highlight that triumph in relocation cases ordinarily requires the moving parent to understand the importance of facilitating the child’s relationship with the parent who is left behind, whether through weekly Skype or Facetime calls or extended holidays outside of term time.

The best case scenario is that parents will be able to agree what is best for their child, either directly, through mediation or negotiation using solicitors. The Court is not a third parent and it is always better to reach an agreement away from the Court, than place their child’s future in the hands of a complete stranger. Any agreement can always be endorsed by the Court, for the sake of certainty.

Relocation cases require expert legal guidance, a strategic approach and an understanding of the emotional and psychological impact that the move will have upon every member of the family not only in the short term but for generations ahead.