Relocating with children from England and Wales to Scotland
This blog continues Kingsley Napley’s series of blogs around the theme of relocation for separated parents and will set out some points to consider when opposing the other parent’s plans to relocate.
The legal position for a parent who wishes to relocate within the jurisdiction of England and Wales and for a parent who wishes to relocate outside of the jurisdiction of England and Wales is different.
There is no law to restrict a parent from moving with their child within the jurisdiction of England and Wales and it is not a criminal offence to do so. However, the other parent can take steps to try to prevent such a move, by applying to court for a “Prohibited Steps Order”. In those circumstances, it would be very difficult for the parent wishing to move with the child to simply “up and leave” before the court has made a decision about whether the proposed internal relocation is in the child’s best interests.
For those parents who wish to move out of the jurisdiction of England and Wales with their child, this is called external relocation. In these circumstances, the explicit consent of all those who hold parental responsibility for the child is required and it would be a criminal offence to take the child abroad without this consent.
If one parent takes a child abroad without the other’s consent permanently or for an extended period – this amounts to abduction, which is likely to result in court proceedings both in England and in the country the child is removed to, in order to secure the safe return of the child to England.
If you are concerned that your child may be taken abroad imminently without your consent, you can file an urgent court application to prohibit the move and in some circumstances apply to retain your child’s passport.
If the other parent seeks your consent to relocate with your child, the first thing to consider is whether such a move is going to be in your child’s best interests. This should be the foundation of any objection to a proposed relocation and must be carefully thought through. If a parent makes an application to court for permission to relocate with their child, the court’s paramount consideration is the child’s welfare, which will be at the heart of any decision made. The court will apply the “welfare checklist” as we have set out in our previous blogs in this series.
The parent wishing to relocate is likely to already have a strategy and careful plan in place, particularly if they have sought legal advice beforehand.
Firstly, communication is key and it is important to fully understand the motivations behind the other parent’s proposed plans to relocate with your child and whether alternatives can be discussed to prevent a relocation. Does the parent want to move for a new job, to return to their family after a separation or just for a change of scene and new experience? Communicating with the other parent can be done directly with them or with the help of a mediator. However, in some situations the matter cannot be resolved without asking the court to make a decision.
It is important to take legal advice early on and to consider the merits of success in defending a relocation application and whether it would be worth the energy and emotional and financial cost of doing so. Relocation applications are not straightforward and success is no way guaranteed for a parent with whom the child spends the majority of their time. The proposed plans put forward by the parent wishing to relocate must be scrutinised by you and your lawyer (and by the court if a relocation application is issued) to ensure that a move really would be in the best interests for your child or whether it would be in their best interests to remain in their current setting.
It may be the case, after careful consideration of the relocating parent’s plans, that defending an application may not necessarily be the best path to take and instead it can be used as an opportunity to reconsider the current arrangements and to put together a plan regarding your future time with your child, which could be advantageous for you.
However, if you decide to defend a relocation application, you will need to file a detailed statement at court as part of your evidence to persuade the court not to grant the other parent’s application.
Importantly, a court will want to know how the relocating parent will facilitate your child’s relationship with you to ensure that there would be no detrimental impact on your child if they were to move away from you. This is perhaps one of the key factors that a relocating parent needs to consider. Any proposed plans should be reality-checked to ensure that maintaining your relationship with your child is feasible as well as assessing the effect on your child that the loss of direct regular contact with you would have on them.
Some further points you may wish to consider when defending a relocation application may be:
The above are just a few of many considerations that should be taken into account in any opposition to a parent’s application to relocate with your child. However, each and every point considered should centre around your child and what would be in their best interests rather than yours or the other parent’s.
As soon as the other parent raises a potential relocation with your child – it does not necessarily mean there will be an immediate court application and there are likely to be other ways of resolving the issues between separated parents that do not involve the court. These alternative dispute resolution methods can be discussed in detail with a lawyer in the context of an assessment of the strengths and weaknesses of your case and the other parent’s case.
If you have any questions about the issues raised in this or other blogs in this series, please contact a member of our family and divorce team. We have a longstanding reputation in advising parents who wish to take their child abroad or elsewhere in the UK to live and relocate after separation or divorce - and equally in advising parents who want to prevent such a move.
See also our “Moving Abroad with Children - Frequently Asked Questions” for further information and you can follow our blog series on relocation for separation parents here.
Alexandra Bishop is a Senior Associate in the Family and Divorce team with experience of all types of private family law work relating to both finances and children.
Alexandra has particular experience in complex financial issues and private children cases.
As non-UK tax residents, the couple will be subject to special rules for calculating the capital gains tax (“CGT”) due in relation to either the sale or transfer of their UK property.
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