If you want to move your child but the child’s other parent with parental responsibility is not in agreement to this, you will first need to apply to the Court for an Order confirming you are able to do so.
This is true for applications both inside and outside of the UK.
A person with Parental Responsibility can take a child abroad for up to 28 days with the permission of everyone who has Parental Responsibility for that child.
If there is a Child Arrangements Order – live with or Residence Order in place, then the parent the child lives with does not need the permission of the other parent for a trip of up to 28 days.
If you want to move your child but the child’s other parent with parental responsibility is not in agreement to this, you will first need to apply to the Court for an Order confirming you are able to do so. This is true for applications both inside and outside of the UK.
Historically the approach of the court in internal relocation cases (inside the UK) had been to differentiate between cases of internal child relocation and those of external relocation, outside the UK and only to restrict the resident parent’s right to reside anywhere within the UK in exceptional circumstances. However in Re C (A child) (Internal relocation) 2015, the Court of Appeal reviewed this and held that there was no distinction between cases of internal child relocation and those of external or international relocation (i.e. outside the UK).( Re C (A child) (Internal relocation) [2015] EWCA Civ1305, [2015] All ER (D) 211 (Dec))
Mostyn J, a British High Court Judge has recently analysed the legal framework set out within milestone cases. He deemed ‘the only authentic principle to be applied when determining an application to relocate a child permanently is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.’ This means an argument that something is in the child’s best interests takes precedence over any other argument in this type of case, no matter how powerful or rational the argument may be.
The Court of Appeal has issued guidance in relation to questions the Court should consider in such cases when deciding whether such a move would be in the child’s best interests;
- Is the parent’s application genuine in the sense that it is not motivated by some selfish desire to exclude the other parent from the child’s life?
- Is the parent’s application realistically founded on practical proposals both well researched and investigated? For example, consideration of visas, immigration status, language, school and access to medical care for the child.
- What would be the impact on the applicant parent, either as a single parent or as a new wife/husband, of the refusal of their realistic proposal?
- Is the respondent parents’ opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
- What would be the extent of the detriment to the responding parent and their future relationship with the child were the application granted?
- To what extent would that detriment be offset by the extension of the child’s relationships with the applying parents’ family and homeland)
In the past there has been a presumption in favour of the primary carers application, but present guidance no longer reflects this.
Further recent case law suggests that although the child’s spoken wishes and feelings will be considered, even those of teenage children wont automatically be the defining consideration. They will be but one consideration in deciding whether moving will be in the child’s best interests, (Re A (Letter to a Young Person) [2017] EWFC 48 and Re N-A (Children) [2017] EWCA Civ 230)
Other recent important considerations have been whether or not a parent historically has supported the other parent’s relationship with their child and as such whether the Court can deem based on this that they would continue to do so if they were granted permission to move. (A v B [2018] EWHC 328 (Fam)).
These are just a couple of examples and this area of law incorporates a broad array of cases with varied circumstances. Ultimately each case is fact specific and the outcome as such will depend on consideration of many differing variables. As such this area of law can often be unpredictable and case outcomes very finely balanced.