Is the Law on Relocation of Children Fit For Purpose

At Grainger Appleyard solicitors we are often asked to advise client’s in difficult circumstances. We are aware that when, following separation, one parent chooses to move away from the other, this can have a considerable impact on contact arrangements. The law draws a distinction between a permanent move to another part of the United Kingdom and a permanent move outside the United Kingdom. It could be argued that if a child moves with one parent to another town or city in the UK this could cause as much disruption to contact as if they had moved abroad. However the approach of the court in these two situations is very different. Is this right?

At present if a parent wishes to relocate with a child to another part of the UK previous cases have shown that, “a restriction upon the right of a carer to choose where to live sits uneasily with the general understanding of what is meant by a residence order”. The court has said, however, there may be “exceptional cases” when a judge needs to consider if it is justified to impose a restriction, on the parent with whom the child lives, preventing them from moving. The court has concluded that every decision must rest on the paramount principle of child welfare. In a case which involved a child who was 9 years old and had very serious health difficulties the court concluded that this was an exceptional case and the mother was prevented from moving. The court considered that there was evidence that the child had a “very strong” attachment to her father and that given her health would not be able to cope with a move which would reduce her contact with him.

In the event a parent wants to permanently leave the UK with their child they must first obtain the written consent of the other parent /or any other person who has parental responsibility for that child.  If the other parent will not agree then the parent wishing to move must make an application to the Family Court for permission to permanently remove. This is in contrast to a parent who wishes to relocate permanently within the UK and who has an order that their child shall live with them. That parent does not need to make an application for permission to the Family Court. In deciding whether to grant the application that a child may be permanently removed from the UK the child’s welfare is again the paramount consideration.

Since it was decided in 2001, a case known as Payne v Payne has been used to set out principles for the court to follow. In that case the mother was from New Zealand and following the breakdown of the marriage she wished to return to New Zealand taking the child of the marriage with her. The father wished the child to remain in this country. The Court of Appeal set out an order of questions to be asked in relocation cases:

•whether the application was genuine and realistic, i.e. not motivated by a selfish desire to exclude the father from the child's life but based on practical propositions which have been well researched and investigated

•if the application fails either of those tests then refusal will inevitably follow

•if the application passes that test then what was the motivation for the opposition, was it genuine concern for the child's welfare or an ulterior motive

•whether there will be any detriment to the child and their future relationship with the non-resident parent if the application was granted and to what extent would that be offset by extension of the child's relationships with the maternal family and homeland

•what the impact would be of refusal of the application on the applicant

All of these factors should be considered with the welfare of child being the paramount consideration. The court also emphasised the importance of the primary carer's wellbeing.

There are important differences between the legal ‘tests’ used by the court in cases dealing with permanent relocations outside the UK and permanent relocations within the UK. If a parent permanently relocates to Belfast is it right that their move would only be prevented in exceptional circumstances where as a permanent move to Dublin would require an application to the court by the person wishing to move and consideration to the factors listed above?

As with most legal matters there are exceptions and technical points to consider in each individual case. Therefore we would urge anyone affected by matters referred to in this article to contact the Family Department at Grainger Appleyard Solicitors for a 30 minute free consultation.