What are the rules or guidelines on internal and external child relocation?

There may be a number of reasons why a parent may wish to relocate with their children, either internally within the UK or externally overseas to another country.

For example, a parent’s job or business may have been relocated. They may have remarried or have started a new relationship with a partner located elsewhere. A parent may wish to return to live near their family after a separation or divorce.

Child relocation could also be for lifestyle reasons as a parent wishes to provide a better standard of living for their children.

Child relocation: Internal relocation

Unless there is a child arrangements order in place specifying with whom a child is to live, or a prohibited steps order or specific issue order to restrict a child’s movements, statute does not place any requirements on a person if they want to relocate a child from one part of the UK to another. Disputes do inevitably arise, and the court has provided guidance on the correct approach to take.

If a parent wants to relocate within the UK, the correct approach is to apply for a specific issue order under section 8 of the Children Act 1989.

A respondent who wants to stop an internal relocation must apply for a prohibited steps order under section 8 of the Children Act 1989.

Child relocation: External relocation

A parent may not remove a child who is subject to a child arrangements order from the UK without the prior written consent of each other person with parental responsibility or with the permission of the court.

An exception arises in the case of a parent named in a child arrangements order as the person with whom the child is to live, who can remove the child from the UK for less than a month.

Relocation in any other circumstances would be a wrongful removal. The left-behind parent could bring an application for the summary return of the child under the 1980 Hague Convention. A criminal offence may also have been committed under the Child Abduction Act 1984.

It follows that a parent wishing to relocate overseas will need to apply to the court for permission to do so. This is known as a leave to remove application and will be determined in accordance with the child’s welfare, by reference to the welfare checklist in section 1(3) of the Children Act 1989. 

The outcome of a leave to remove application will have profound effects for the family, especially for the left behind parent if the application is successful, as well as for the applying parent if refused. The motives behind the application are key and it is essential that any parent wishing to apply for or oppose an application for leave to remove takes all steps required to build the case in support of their position.

Key principles

Decisions regarding internal or external child relocation following separation are welfare based decisions meaning that the outcome of a relocation application will be based on the welfare of the child. The court considers the welfare checklist in section 1(3) of the Children Act 1989 as follows:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);

(b) the child’s physical, emotional and educational needs;

(c) the likely effect on the child of any change in his circumstances;

(d) the child’s age, sex, background and any characteristics of the child which the court considers relevant;

(e) any harm which the child has suffered or is at risk of suffering;

(f) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;

(g) the range of powers available to the court.

The existence or the absence of a child arrangements order does not determine the outcome. The court will consider all of the circumstances of the case, having regard to the basic principle that a parent can live where they like in the UK with the children that live with them.

It follows that permission may be granted to a parent with whom the child usually live unless the child’s welfare requires otherwise. However, the court must also consider the impact on the child of any change to their relationship with the other parent. For example, the proposed move may cause practical difficulties for the child maintaining contact with the left behind parent. Parents must therefore consider this question carefully. Existing arrangements for both parents to spend time with the child may need to change following a move to ensure that the child has a meaningful relationship with both parents. Parents contemplating relocation will need to provide a significant level of detail regarding their plans. This must address all of the practicalities regarding the move, including among other things where the child will live, the motivation for the move, how the move will be funded, education arrangements, medical care and, importantly, how the child’s relationship with the other parent will be maintained following the move. These interests must be balanced and if it is not possible to accommodate everyone’s wishes, the best interests of the child dictate the outcome.

Legal guidance in internal and external child relocation

The leading cases of Payne and Payne [2001], MK v CK [2011], F (A Child) (International Relocation Cases) [2015] and Re C (A Child) (Internal Relocation) [2015] all give guidance as to how the court will determine applications for leave to remove. A holistic evaluation of the welfare checklist will be carried out requiring consideration of additional factors as follows:

  • The ascertainable wishes and feelings of the child concerned considered in the light of their age and understanding.
  • Physical, emotional and educational needs.
  • The likely effect on the child of any change in their circumstances, including: –
    • changes to housing, schooling and relationships if they remain in England;
    • how likely it is for the plan to be implemented as conceived;
    • any positive effects in relation to the removing parent’s ability to care for the child if they move abroad;
    • other positives and negatives about the proposed destination country in terms of environment, education, and links with family;
    • the impact on the child of moving permanently to another country in relation to their relationship with the left behind parent and other extended family; and
    • to what extent that may be offset by on-going contact and extension to other relationships in the new country.
  • The child’s age, sex, background and any characteristics of his which the court considers relevant.
  • Any harm which the child has suffered or is at risk of suffering. This overlaps with the effects of change and so within this:-
    • the impact on the child of the change of their relationship with the left behind parent;
    • how secure that relationship is and how likely is it to endure and thrive if the child moves;
    • how realistic the proposals are for maintaining contact;
    • the impact on the removing party of having to remain in England, contrary to their wishes and the consequent impact on the child;
    • the impact on the left behind parent of the child moving;
    • whether the ability of either parent to provide care for the child will be adversely affected by the refusal or grant of the application, and if so, to what extent; and
    • the extent to which loss of contact with the left behind family will be made up for by extension of contact with the family in the new country.
  • The capability of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs and within this:-
    • how the parents are currently meeting the child’s needs;
    • whether there any aspects of their ability which may be important in the context of a relocation, for instance their capability of meeting the emotional needs of the child for a relationship with the left behind parent;
    • whether the relocation application is wholly or partly motivated by a desire to exclude or limit the left behind parent’s role;
    • whether the left behind parent’s opposition to the move is genuine, or motivated by a desire to control, or another malign motive;
    • whether the parent be better able to care for the child in the new country than in England; and
    • the role that the left behind parent can play in the future.
  • The range of powers available to the court under the CA 1989, including:-
    • whether conditions of contact can be imposed in terms of provision of funds, or frequency of visits; and
    • whether court orders can be made in the other country, either mirror orders or orders which will allow reciprocal enforcement.

Any parent contemplating or opposing an internal or external child relocation application should take legal advice as soon as possible before any steps are taken. Detailed consideration must be given to all of the factors highlighted in the welfare checklist.

For help and legal advice on child relocation contact Watson Morris today

Written by Peter Morris

October 24, 2022

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