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.

 

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