Colin Rogerson, consultant solicitor in the Mills & Reeve National Family and Children Law Team is a specialist in all areas of children law and has considerable experience in international children law issues. Bases on his extensive experience with child relocation cases, this his advice for you case about the relocation of your child.
How to build the best possible case to relocate
International child relocation cases are some of the most difficult cases that come before the Family Court. In today’s global world, families are of mixed nationalities, as a result of the possibility to work overseas. Following divorce or separation, it is often the case that a parent who moved to the UK for work and subsequently formed a relationship wants to “return home”, where they have the support of family and friends, or perhaps new job or life opportunities arise to make a new start overseas.
If you are considering moving overseas, it is important to obtain permission of all people who hold parental responsibility before removing the child from the country. If consent from the other person with parental responsibility is not given, it will be necessary to make an application to the Family Court for the court’s permission to relocate with the child.
Ultimately, the court’s paramount consideration is what is in the best interests of the child. If you seek permission to relocate, you will need to satisfy the Judge that your plan to relocate is in your child’s best interests. Whilst every case is different, here are some tips on how to best to build a case to relocate.
Consider all options before litigating
People often think that there is no room to negotiate or settle a relocation case, but this isn’t always the case. There are lots of issues to agree upon with a relocation application beyond the “permission to go.” How often will the left behind parent see the child? Who will pay for the cost of travel? Many relocation cases are successfully mediated and mediation is always worth considering.
Arbitration is also available in some international relocation cases, and may be preferred to litigation due to how much quicker and (almost always) cheaper arbitration is to litigating in the courts. This might be a particularly important factor to consider if the move is intended to coincide with the start of an academic year, or the offer of employment. Respondents may be less inclined to agree if they feel that delaying matters will improve their chances, but ultimately the court is unlikely to refuse an application simply because the court could not hear the application until after the school year had commenced, and the only difference will be more disruption to the child’s life.
Don’t relocate without permission
Where a child arrangements order is in force, a person named in the child arrangements order as a person with whom the children shall live can (unless the order says otherwise, and subject to any time that the child has to spend with another parent under the order) remove the child from England & Wales for up to one month.
If there are no orders in place or the intention is to remove the child for a longer period (or permanently) from England, the consent of all people holding parental responsibility, or the court, is required.
Removing a child from the UK without the required consent may constitute the offence of child abduction. Convictions are rare in criminal law, but there are also civil law remedies available. The UK is a member state of a number of international Conventions which, depending on the country, can be relied upon by the left behind parent to apply to the court in the country where the child has been taken, for the child to be summarily returned to the UK.
If you are ordered to return to England by an overseas court, it may be harder for you to obtain the court’s permission.
Motivation for relocation
The motivations for your proposed relocation are important and they will be scrutinised by the court and they must be clearly set out.
The court will want to be confident that there is a genuine desire to relocate and a realistic plan. If the Judge believes that the application is motivated, even in part, by a desire to prevent or limit a relationship between the child and the left behind parent, without good reason, it is unlikely to succeed.
Domestic abuse
Surviving domestic abuse can be a powerful motivating reason why a parent will want to relocate. Where there have been findings of the court of domestic abuse, or there are allegations, it is always advisable to take specific legal advice about your individual circumstances. Where there has been domestic abuse, you may be eligible for legal aid (depending on your financial circumstances).
A common argument made by parents opposing relocation applications is that the reason for seeking to relocate is to hinder their relationship with the child. Where domestic abuse is an issue in the case, it is important to protect the safety of both the child and the victim of the abuse. This will often mean that the relationship between the parent who has been found to have perpetrated domestic abuse and the child will be already subject to constraints, for example through supervised contact.
Where the left behind parent’s time with the child is supervised because of domestic abuse, the logistics of any proposals are likely to be more complicated from a logistical perspective.
The child’s wishes and feelings
The ascertainable wishes and feelings of the child will be considered in light of their age and maturity. Care should always be taken not to place the child under pressure, or to raise expectations, but their views will be taken into account. The views of even a teenager will not be determinative, but the older the child, the more important it is that the child is in agreement with the relocation plan.
Have a realistic and well thought out plan
The court will want to scrutinise each aspect of your plan. You will be expected to have a detailed plan for housing, education, medical care, immigration status in addition to the plan as to how the relationship between the left behind parent and the extended family will be maintained.
In most cases, and on a simple level, the Judge is faced with a decision between maintaining the status quo (staying where they currently are) and your proposal. It is your responsibility to put together a case to convince the Judge that your proposal is in the best interests of your child. Highlight the positives and think about the negatives and what you can say about that. It is often said that relocation should not be permitted because the child is close with, for example, their paternal family and they would lose this bond. In this case it might be said that while it would mean that they would not be able to see their paternal grandparents as often, they have the opportunity to now build as close a bond with their maternal grandparents. Anticipating and addressing points that are likely to be raised will usually make your own case stronger.
International contact proposals must be realistic and, again, this will be very case specific. International contact between a family relocating to Paris from London is likely to be easier than a parent who is seeking to relocate to New Zealand. The Judge will want to understand how the costs of contact will be covered.
In some cases, school holidays which might have previously been divided equally between the separated parents, may be re-distributed so that the left behind parent has more time especially during the longer holidays.
Age of the child
The age of your child is of course something that you cannot change, but it will still relevant to the court’s consideration and you need to have in mind the likely impact on the relocation application in your case:
– Very little children will not have been able to build a strong relationship with the left behind parent and so a relocation will be said to have a greater impact on younger children.
– Indirect contact – such as FaceTime/Skype/phone calls – will be of a more limited value with a younger child.
– Younger children may not be able to cope as well as older children with travel, or longer periods away from their primary carer.
– Younger children not in school may not be confined to international contact during the school holidays when travel is more expensive.
– Older children might already have a strong relationship which will survive the relocation.
– Older children may be able to travel as a solo travellers, alleviating some of the logistical difficulties and costs that accompanying adults bring.
– It might be said that a strong bond with a left behind parent might lead to the court weighing in favour of refusing the relocation application.
Conclusion on child relocation cases
An application to relocate with a child, where contested, will attract close scrutiny. Plans must be well thought out and must be presented with great care and sensitivity.
Read more about Colin Rogerson
Read more about child relocation
Read more about child relocation and child abduction in the United Kingdom – England and Wales
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