Is consent required?
If a parent wishes to move outside of England and Wales (“external relocation”), the written consent of all those with parental responsibility (“PR”) is required; if this consent is not obtained, it is a criminal offence to do so (s.1(1) Child Abduction Act 1984). However, as many readers will know, if a parent has a “Lives With” order in their favour, they can remove the child outside of the jurisdiction for up to 28 days without the consent of the other parent.
If a parent wishes to move within England and Wales (“internal relocation”), in theory, there is no legal requirement to obtain the consent of those with PR to live in a different area with the child. However, it is not as straightforward. Consent will usually be a legal requirement before a parent relocates or as a consequence of the relocation. This is considered in more detail below. In any event, it is important that the parent who wishes to relocate obtains the consent of the other parent.
Practical considerations within internal relocation
If a parent is thinking about internal relocation, they need to consider the practical and legal considerations of any proposed move. Of course, if the parent wishes to relocate close by, such that the handovers are not significantly affected, then the following considerations may fall away.
If the parent seeking relocation has a “Lives With” order which includes “Spend Time With” arrangements for the other parent, thought should be had to whether contact can still be achieved with the other parent if a relocation takes place. If it cannot and the relocating parent does not adhere to the order, this would likely lead to a breach of the order and subsequently, the other parent would likely be at liberty to seek enforcement of that order.
In the above circumstances, thought should be given to obtaining the consent of the other parent for the move and/or an application to vary any final order outlining those arrangements. This should be considered before the move takes place to avoid an enforcement application being made by the other parent.
If the relocation is further away, it is likely that there will be changes to the child’s school and GP. If this is the case, changes to these institutions all require consent from those with PR prior to any change taking place.
It must also be noted that there is scope for a parent to apply for a Prohibited Steps Order to prevent any proposed relocation from taking place.
What principles guide the court when considering a relocation application?
The welfare of the child is the paramount principle when the court is determining these applications. Whether the relocation is internal or external, the law or principles do not change (Re C (Internal Relocation) [2015] EWCA Civ 1305 (“Re C”). As outlined in L v F [2017] EWCA Civ 2121 (“L v F”), the fact that one option would involve the child moving overseas does not lead to any difference of approach.
If the court is considering a relocation application alongside an application for a child arrangements order, the case law makes clear that there is no priority afforded to the application to relocate, in other words, there is no lead application (L v F). Rather, the court’s ultimate task is to identify the available options, and to select the one that best meets the child’s welfare needs.
In Re C, her Ladyship emphasised that the distance that a parent wishes to move will always be important and therefore the court is unlikely to impose restrictions on a parent who wishes to move to the next village. The practicalities of the child spending time with the left behind parent were also considered important and that, “only where it cannot happen”, “and the child’s welfare requires that the move is prevented, does that happen” [53].
The statement accompanying the application
The statement in support of any application for relocation is crucial. Thought should be had to include the following (not exhaustive):
· a detailed plan with supporting evidence of what their move will look like, for example, the schools that the children will go to, their future accommodation, what the area is like, the amenities and whether family and friends are close by;
· what contact will look like for the other parent – they must be seen as being proactive in promoting this and it must be well-thought-out;
· the reasons for the move, for example, an employment opportunity, a lifestyle choice, or returning to the area to be closer to family;
· the financial aspect as to how new accommodation will be funded, whether the relocating parent will be in employment and whether there will be any costs in connection with contact for the other parent; and
· the effect of a refusal to the relocation including any emotional and financial consequences.
The statement in response
If you are acting for the other parent, thought should be had to the following (not exhaustive):
· the current contact they have with the children and how this will be affected by a move;
· practical difficulties for contact if the children are allowed to move;
· any problems with the proposed living or educational arrangements for the children;
· any wishes and feelings of the children known to the parent; and
· the effect on them if the other parent relocated.
The information contained in this article is provided for informational purposes only, and should not, nor is it intended to be, construed as legal advice.
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