Following divorce and relationship breakdown, many clients ask us this:
Can I take the children of the family and move home, either in this country or abroad?
The answer is not always easy and the emotions involved can be extreme.
Simply put, if you want to move abroad with minor children you first need the consent of the other parent or permission of the court. By contrast, if you want to stay in this country you do not, technically, need the other parent’s consent/court’s permission – but in practice, they may be able to block the move.
Relocating with children takes a lot of planning and preparation: even more so where the other parent may try to block the move. You should seek legal advice from your family lawyer at the earliest opportunity. It is a technical area of law and you need to think it through very carefully.
As with all matters concerning children, we generally recommend that you try to reach agreement with the other parent first. If that’s not possible, try mediation– although that’s often difficult with such a binary issue at stake – or, if both parties agree, arbitration (see below). Court applications for such difficult and emotional issues are far from ideal.
Moving home without permission of the other parent or court can result in serious consequences, especially if the move is abroad, in which case it is a criminal offence.
If you become aware that the parent with care of the children intends to move away with the children, either internally or abroad, you can apply to court to block it, by way of an emergency prohibited steps order. Such injunctions can be obtained on short notice, triggering full scrutiny of the matter through court process, in child-focussed litigation.
The paramount consideration for any judge dealing with permission to relocate or a prohibited steps application will be the welfare of the children. It will be vital to carry out careful research beforehand and your family law solicitor will want to present the case with detailed and persuasive evidence as to the proposed arrangements, for example dealing with:
- The reason for the move;
- Housing arrangements and the local area/amenities;
- School and education;
- Proposals to maintain ongoing contact with the other parent;
- Extended families and any other parties involved.
Objections of the other parent will be carefully considered: are they genuine and child-centred?
The Welfare Checklist:
The judge must consider the Welfare Checklist, which requires attention to be given to the child’s best interests by carrying out a full evaluation of each parent’s proposals, including:
- The wishes and feelings of the child, in the light of their age and understanding;
- The child’s physical, emotional and educational needs;
- The likely effect on the child of any change in their circumstances;
- The child’s age, sex, background and other key characteristics;
- Any harm which the child has suffered or is at risk of suffering, including the impact on the child’s relationship with the left behind parent; equally, the impact of a refusal on the parent wanting to move (and consequent impact on the child);
- The ability of each parent to meet the child’s needs, including how they are currently doing that and whether the relocation is wholly or partly motivated by a desire to exclude or limit the left behind parent’s role.
As mentioned above, court proceedings are far from ideal for such matters. They are slow, stressful, and often expensive.
More and more of our clients are choosing arbitration as the forum to resolve their family law disputes. This can only be done by agreement. Parties can appoint a suitably qualified arbitrator to adjudicate the matter. The arbitrator’s role mirrors that of a judge in court proceedings. Experts can be appointed to advise on a joint basis, for example an independent social worker, who can speak to the children and help ascertain the wishes and feelings of the children – again, mirroring court proceedings.
On the face of it there are additional costs in arbitration, as the arbitrator has to be paid (as does any expert instructed), but in reality a lot of costs can be saved by virtue of the process being tailored to the needs of the case. Cases can be heard in comfort and privacy of solicitors’ offices with all their facilities to hand, rather than the maelstrom of court. They can be listed on dates convenient to all parties, and hearing dates easily changed if last minute problems arise. The same arbitrator will deal with each hearing, rather than a different judge every time, which so often happens in court.
In relocation cases, the main advantage of arbitration is probably speed: most of our clients seeking to relocate are in quite a hurry for one reason or another (new job, new relationship, etc), and the courts have never been busier or more overloaded than they are now. Extended court litigation adds enormously to the costs and stress of the situation, which can cause lasting damage to delicate relationships.
If you would like to discuss your children issues with an experienced solicitor please contact our family law team who will be able to answer any questions you have relating to the above.