Defending a relocation application – what to consider?

Relocation blog series

28 July 2021

Hearing the news that the other parent wishes to move away with your child permanently, perhaps many miles away from you, is likely to be met with a range of emotions. Some parents may instinctively feel that the other parent has the power to just “up and leave” with their child without your consent, particularly if the child lives with that parent for the majority of the time. In most circumstances, this is unlikely to be the case.

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 Law

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.  


Defending a relocation

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.


What are the options?

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.


Your relationship with your child

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:

  • How will you be able to visit your child in their new location? How easily can your child come and see you? If your child is relocating abroad, you may want to research the cost and frequency of flights to and from the destination.
  • What are the specific quarantine arrangements? If you or your child will need to quarantine following travel, how will that impact upon your time with your child? Is regular international travel achievable?
  • Does the proposed new school for your child follow the same or similar curriculum to the school they are currently at? How will your child adjust to this? Will your child be able to continue with their hobbies and interests in their new setting? It is important for you to consider and compare what your child’s day to day life is like now and the benefits and opportunities they have in their current setting and whether that could be reflected and replicated in their new environment or not.
  • How easy would it be to obtain a “mirror order” to reflect any child arrangements order made in this jurisdiction in the country your child is moving to? It is important to ensure that (if a relocation application was successful) you would have the option of enforcing an English order in the new country so that the relocating parent cannot simply renege on any existing arrangements agreed or ordered before your child moves away. You may wish to seek advice from a local lawyer in the proposed new country to find out how easy it would be to enforce an agreement or order made in this jurisdiction in the new country. If it would be difficult to do, this could strengthen an argument that a relocation would not be in your child’s best interests.
  • What will your child’s and the other parent’s support network look like? Do they have family and friends in the new area that they can connect with straightaway? If not, how will they build such a support network? What would the impact on your child be if he or she moved away from their current friends and family?

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.

Take legal advice

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.

Further information

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


About the author

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.


Latest blogs

How UK Capital Gains Tax is applied to UK property when non-UK resident spouses divorce

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.

The importance of seeking support from your employer when going through a divorce

The breakdown of a relationship is a challenging and stressful time, even when you and your partner are on relatively good terms.

There are a number of support services we recommend to help manage the strain which comes with relationship breakdown and the significant changes to your and your children’s circumstances. People often go first to friends and family and then perhaps to a lawyer, counsellor or financial advisor. Many people do not feel comfortable talking to their employer about their circumstances and in this blog, we explore how it can be important from both a personal as well as family law and employment law perspectives.

Don’t make an awful year even worse…Separation and Capital Gains tax

The last 12 months have put an awful lot of pressure on the family unit and sadly this has led to a spike in separation and divorce amongst married couples. With the end of the tax year fast approaching (last day Monday 5th April – Easter Monday) it is timely to consider the tax consequences of separations.

Co-parenting during COVID-19 – what if we cannot agree on our child returning to school or nursery?

We recognise that the last few months have been testing for many separated parents who have been co-parenting throughout the pandemic – with home schooling and juggling work and child care commitments between two households. With the uncertainty as to whether schools can safely reopen fully, some separated parents may well find themselves disagreeing on whether their child should attend in such circumstances.

Barder - The Good, the Bad and the Ugly

Much has been written about the case of Barder v Calouori [1988] AC 20 (“Barder”) in the initial stages of the COVID-19 lockdown. It was held out as the means by which maybe, just maybe, it might be possible to reopen a case where a substantive financial order has been made on the basis that the COVID-19 pandemic is an event which has invalidated the basis, or fundamental assumptions of the original financial order.

The melting pot of a divorce, a pandemic and an uncertain housing market

The family courts remain open in the midst of this pandemic and as a divorce lawyer, I therefore continue to grapple with the question of how the asset pot should be divided fairly and in accordance with the law when there is so much uncertainty in the global market.  Whilst the government recently announced the “re-opening” of the property market, economists and housing experts have differing views on how significant the fall in house prices will be and when the market can be expected to bounce back. 

Coronavirus and fluctuating pension values – will it affect my divorce settlement?

The uncertain financial trajectory as a result of the coronavirus crisis is something that couples going through the divorce process need to consider carefully as it can have an impact on their financial settlements. Pension assets can often get overlooked on divorce generally as they are not viewed in the same way as a cash asset or a property. 

Loosening lockdown: practical points for separating couples

Now we have a loose ‘sketch’ of how the country might emerge from lockdown, Cady Pearce considers what divorcing couples should be considering.

COVID-19 and the diary of a family and divorce trainee solicitor in lockdown

A peek into the lockdown diary of Lucy Bluck, family and divorce trainee solicitor at Kingsley Napley. She shares her experience of about remote hearings, the WFH adjustment and a virtual murder mystery party. 

The impact of the coronavirus crisis on business valuations in divorce settlements

The impact of COVID-19 is being felt in many different ways.  For those going through a separation or divorce, the pandemic has added a layer of uncertainty and stress to an already difficult process. This is particularly so for those who own a business (or whose spouse does), where the value of their business may have been affected and they are concerned with the impact on a financial settlement. In this blog, we look at the complexities of valuing businesses in divorce proceedings at this unprecedented time and provide some practical considerations.

Ways of protecting family wealth on divorce

Whilst most weddings and plans to marry have been put on hold during the coronavirus crisis, couples are still giving thought to the future of their relationship and with it, what control they have over their financial arrangements if that relationship should end. In this blog, Abby Buckland explains some of the proactive steps parents can take to help preserve wealth intended for their blood family.

The challenges for intended parents and surrogacy arrangements during the coronavirus crisis

The coronavirus crisis has caused huge disruption across the world. The distress that it is causing is compounded in circumstances where intended parents of surrogacy children are in the middle of their surrogacy journey. In this blog, we address some of the most common issues people are experiencing and provide practical tips on how to navigate the current situation. These challenges include access to fertility treatment, pregnancy and birth, international travel restrictions, immigration status, parental orders and Wills among others.

My financial circumstances have changed since COVID-19 – can I vary the spousal maintenance I pay?

If your income has reduced as a result of the coronavirus pandemic, you may not be able to pay the same amount of maintenance to your former partner. This could be short-term or you might be worried the situation could be more permanent. In this blog, we set out some key points to consider if you can no longer afford to pay the spousal maintenance you have been ordered to.

Am I stuck with my divorce settlement after coronavirus?

The coronavirus pandemic is changing the world dramatically. It can feel as though the ground is shifting beneath your feet. If you are recently divorced, or are currently getting divorced, that feeling may be a familiar one. We can’t predict what the health implications of COVID-19 will be for us individually, or for the community we live in, but some economic effects are already being felt by many who have already either lost their jobs, been furloughed or had a reduction in income. In this rapidly evolving environment where people’s financial circumstances are changing, many are asking if their divorce settlement still applies. In this blog, which is the first in a series on the subject, we set out some preliminary guidance.

Resolving family disputes through mediation, arbitration and private FDRs during the coronavirus crisis

The coronavirus crisis has brought about some of the biggest challenges to our lives, health and freedoms that many of us will ever experience. The pressures we face are significant while we also do our best to manage the impact on our relationships, mental health and financial circumstances.  It is important that we all try to communicate and do what we can to keep ourselves and our loved ones safe and happy while acknowledging that the ways in which we can do this are very different to what we are used to. In this blog, we consider alternate dispute resolution methods (including online) that are available to help couples navigate a separation either with the support of a solicitor or on their own during this time.

Navigating relationships through the coronavirus crisis

We have now had our first week of living under the government’s rules on staying at home and away from others.  Weather-wise it has been a glorious start to Spring with beautiful clear blue skies but otherwise it has been the start of an unprecedented new and uncertain way of life for those living in the UK and elsewhere during the COVID-19 crisis. Marriages and relationships can be difficult at the best of times but we are now in completely unchartered territory. In this blog, Shirlee Kay, a therapist and couples’ counsellor, and Rachel Freeman reflects on how these challenging times can affect relationships and provide some suggestions as to how couples can best navigate relationships through this pandemic.

COVID-19: overcoming the challenges of co-parenting for separated and divorced parents

Following the government announcing restrictions last night for staying at home and away from others, further details have been published about the “lockdown” restrictions, which confirm that “moving children under 18 between their parents’ homes” is one of the permitted reasons to leave home. 

COVID-19 and self-isolation: what to do when the danger is at home

For many of us, home is a place of safety in times of difficulty, stress and uncertainty. But for those who experience domestic violence, home is often a place of violence, danger and fear. According to government figures, an estimated 1.6 million women and 786,000 men in England and Wales experienced domestic abuse last year, which is a staggering figure. Whilst highly sensible and necessary advice given the on-going coronavirus crisis, the government’s latest ‘social distancing’ rules, which are rapidly moving towards mass self-isolation, are at odds with its own figures illustrating just how prevalent the risk of domestic violence is.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Ready to find out where you stand?

Our online systems allow you to get started anywhere, any time and you can save your progress.

Click here to get started

Skip to content Home About Us Insights Services Contact Accessibility