The Immigration Rules meet the Law Commission
There is a wealth of information available to separating families when they make the transition from a two parent family to being single parents and sharing the care of their children, but what happens when time moves on and separated parents start to settle into their new lives?
As the months and years go by, new partners and new children may come into the picture or a parent may feel that they want to move on and start a new life. The effect of separation can often mean creating two houses out of one and families may well feel that an area which was perfect for them as a family is now not what they need as a single parent. It may be that the affordability of housing, difficulty getting into schools or lack of support network in the area pushes the parent with care to consider a move.
What happens when a parent decides to relocate with a child - whether it is to a different country (external relocation) or a different location within England and Wales (internal relocation)?
Relocation often brings up old emotions and can sometimes feel like a second round of separation; one parent feeling like they are having their child taken away from them and the other feeling like they are being kept somewhere against their will. Relocation cases are, by their nature, binary in their outcome and there tends to be a clear ‘stay vs. go’ tension which encourages people to litigate. One parent can often feel betrayed by the other particularly where, from their perspective, the arrangements in place are working well for the child. It can be quite unsettling to think that you have already adjusted your route map once to accommodate the separation, but now you may have to do it all again and the diversion planned is likely to result in huge compromise and upset for you and your child. Whilst it is not impossible to mediate on relocation, parents often find it challenging as the potential outcomes can appear stark and it is difficult to see any middle ground or ‘split the difference’.
Planning a move within England and Wales (an internal relocation) falls outside of the everyday decisions you make for your child and will need to be agreed between you as parents. It is important, therefore that you consult with the other parent as soon as possible; their consent will be needed before you can relocate and having open and honest discussions at an early stage about what a move (or staying) will mean for your child can help to keep things cordial between you.
As a general rule, the further away you plan to move with your child from where you currently reside and the more disruptive the move will be to the arrangements in place, the more likely it is that you and your former partner will disagree about the move. Where an agreement cannot be reached, one party will need to make an application to the court.
How do the courts make decisions in internal relocation cases?
Until recently, there was a question mark over internal relocations and what a judge should be asking him/herself before making a decision in these difficult and often highly emotional cases. The law is settled in terms of external relocation cases (where a child is to be moved outside of England and Wales). The judge must undertake a full welfare analysis and decide whether a move is in the best interests of the child. There may be other factors that the judge takes into account but these are not determinative. The deciding factor will always be the welfare of the child. The court will look at the welfare checklist at section 1 of the Children Act 1989 and take into account a variety of child-focussed factors, including the child’s physical, emotional and educational needs, the likely effect on them of any change and the child’s ascertainable wishes and feelings (considered against the backdrop of that child’s age and understanding).
In internal relocation cases an unhelpful theme was emerging. It seemed that unless there were exceptional factors at play then a parent with care should not be prevented from moving freely within England and Wales with their child. This put the non-residential parents on the back-foot having to prove that their case and their child was somehow exceptional in order to have a fighting chance at preventing a move.
This issue arose most recently in the case of Re C (Internal Relocation) heard in December 2015. The Court of Appeal confirmed that the position in respect of internal relocation is the same as that in external relocation cases. The decision for the judge is a straightforward welfare decision. A judge must decide whether, in all the circumstances, it is in the child’s best interests for the move to take place and will conduct a full analysis of the welfare checklist referred to above. This is not to say that the right of the parent with care to “move on with their life” will be ignored, it will be taken into account by the judge when s/he is making their welfare decision.
The court said in Re C that the parents’ views are of great importance but only in the context of evaluating and determining the child’s welfare. In essence, saying that the parents’ positions and opinions will be viewed through the prism of the child’s welfare and from the child’s perspective. This naturally draws the focus back to the child and away from the parents who can become so embroiled in their own dispute that the child’s best interests get lost en route.
The court is a ‘frequent flyer’ in deciding relocation cases, however it must not rely on presumptions and presuppositions. The case of Re C is a timely reminder that the court must put its newspaper down, remove its headphones and listen to the safety briefing. There are no presumptions in these cases and just as they do in external relocation cases, the courts must undertake a full and holistic welfare assessment of the child’s best interests.
Our team of family lawyers has a longstanding reputation in advising parents who are relocating within England and Wales or abroad and parents who are wishing to prevent a move from happening.
You may also be interested in reading some of our previous blogs about children and separation:
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