In part two of Lisa Burton-Durham’s Relocation series she reviews the issues surrounding one parent’s wish to move permanently outside of the UK with their child. This is often referred to as an external relocation or a removal from the jurisdiction.
As I mentioned in part 1 of my article, relocation cases are usually very emotional and are often described as the most challenging cases in family law this not without good reason.
For the parent who may be ‘left behind’ there are, understandably, often genuine concerns about the impact of the move on their relationship with their child. For the parent wishing to move there may be feelings of resentment towards a parent who may be trying to prevent the move.
There has been a great deal of case law on external relocation cases but, like internal relocation cases, the primary consideration of the court will be the child’s best interests.
So what does the law say?
- It is an offence to remove a child under the age of 16 from the UK without the written consent of every person who has parental responsibility, a guardian, a special guardian or any person named in a child arrangements order (CAO) as a person with whom the child is to live and any person who has custody of the child, or permission from the court.
- The exception to this is that a person who is named in such a CAO, as a person with whom the child is to live, is permitted to remove the child from the UK for a period of less than one month. They may therefore take a child on holiday abroad without having either to seek permission of the non-resident parent or to give notice.
In cases where a parent wishes to remove a child from the UK for a period in excess of one month, unless the written consent of every person with parental responsibility for the child is obtained, an application for permission must be made to the court. This is known as a Specific Issue Order and is made under Section 8 of the Children Act 1989. Like internal relocation cases if you wish to stop the move you would need to make an application for a Prohibited Steps Order under the same act.
In deciding whether to grant permission, the court must place the emphasis on the child’s welfare and must presume, in respect of each parent, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. The court will, more often than not, also apply the statutory welfare checklist which I touched upon in part 1 of my article as it is a useful source of information.
Since 2001, the leading case on relocation had been Payne v Payne but this has been scrutinised on a number of occasions more recently and the current law on external relocation cases is now to be found in K v K (children) (removal from jurisdiction) and Re F (a child) (permission to relocate). However, the guidance factors set out in Payne are still valuable in so far as it helps judges to identify factors which are likely to be of importance. However what is now very clear is that the Payne factors are not to be applied rigidly.
These were the factors set out in the Payne case:-
- Whether the application was genuine and realistic, i.e. not motivated by a selfish desire to exclude the other parent 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 external family and homeland;
- What the impact would be of refusal of the application on the applicant.
The Court of Appeal has since laid down further useful guidance and made it clear that the Payne factors are not to be applied exclusively:-
- The court’s task is to undertake a global, holistic, comparative evaluation of welfare issues to determine what is in a child’s best interests;
- The wishes of a child are a significant and relevant factor;
- The Article 8 rights of the children and parties in a case (to private and family life, under the European Convention on Human Rights) should be considered when evaluating the arrangements of what is proposed;
- It is more important to look at what is happening on the ground, rather than trying to fit the facts of cases into closed categories.
- The court should be careful, when interpreting the case, to differentiate between guidance and principle, only one of which is binding;
- Guidance from other cases should be considered, but every case is different and different factors should be considered in each;
- But nowadays the courts apply the same principles in internal relocation applications as they do in international ones. The courts believe the two should be consistent. Lady Justice Black summarised this point in C as follows:
The situation seems to be to have been very like that which developed in relation to external relocation, with the guidance provided in Payne v Payne being taken to be binding legal principle when, in fact, as K v K identified, the only authentic principle running through the entire line of external relocation cases was that the welfare of the child was the Court’s paramount consideration. When one goes back over the authorities on internal relocation, I think it is clear that the same has happened there.
It was stressed that the court should look for positive solutions, particularly in relation to the parent left behind.
Let’s look at the practical considerations
Probably the hardest hurdle will be having that initial conversation with the other parent to make them aware of your wishes and intentions. It’s important to approach the subject as soon as practicably possible ensuring there is plenty of time to deal with the matter. It should be noted that should the court need to be involved it may take 3-6 months to resolve. What should not be underestimated is the need for communication to remain open between the parents and this can be assisted through the use of mediation.
It is essential that before any application is made that the proposed plans must be well thought out, thoroughly prepared and investigated. It will be necessary to address the proposals in great detail with suitable documentary evidence being provided in support.
While not being an exhaustive list the following should be included:-
- The reason behind the proposed move this could be an employment opportunity for the the parent or their partner; a return to a home country or a lifestyle choice;
- Accommodation: the accommodation that the child will be living in; details of how that will be funded and provide documentary evidence including information about the area they will be living;
- Education: providing as much information as possible from any prospective school, including details of the examination system; if the move is supported by the child’s current school. Consider obtaining a letter from the child’s teacher commenting on their view of the child’s ability to adapt and settle into a new school;
- Financial details: of how the parent will be supporting the child financially, including details of relevant employment;
- Support network details of the parent’s support network abroad after the proposed move;
- Whether there are immigration requirements that have to be satisfied, which should be put in hand before the application is made;
- Contact: well-thought-out proposals for contact between the child and the other parent addressing, for example, issues of travel including funding, telephone contact and showing commitment to making the arrangements work; consider, where appropriate, making available internet facilities and the use of a webcam to facilitate regular contact;
- Consider offering to put in place a mirror order to ensure that contact will continue in accordance with the terms proposed, address the issue of who will fund the application and whether funds should be set aside for that purpose;
- Benefits: providing as much information as possible to show what the benefits are to the child by the move.
Objecting to a proposed relocation
If you wish to object to any application to relocate your child to another country you will need to explain to the court why you do not agree, setting out the details in a statement. You will need to cover things such as:
- The current contact you have with the child and how this will be affected by a move overseas;
- Practical difficulties in contact if the child are allowed to move;
- Any problems you can see with the proposed living or educational arrangements for the child;
- The wishes of the child as you understand them, and;
- The effect on you of a move.
In conclusion when addressing the principles of both internal and external relocation cases, the principles have been summarised as follows:
- There is no meaningful difference between internal and external relocation and ultimately both depend on the best interests of the child or children.
- The wishes, feelings and interests of both parents are important, but the welfare of the child or children will remain central to the case.
- The court is likely to still find the Payne v Payne considerations helpful as a checklist to help balance what is within the child’s best interests.
Please contact us to discuss your circumstances if you are thinking of relocating with your child(ren) permanently outside of the UK after a separation or divorce.