Rachel Smith, associate solicitor in Mincoffs Solicitors' family team, offers advice on the relocation process for separated parents.
These days we live in a mobile society and many people dream of living in another country. Perhaps they wish to return to a home country to access support from family and friends, after being offered the job of a lifetime, wanting to be close to a new partner or just seeking a new start or better lifestyle.
Now that the restrictions which were in place due to the coronavirus pandemic have been lifted in many areas, such dreams for many are no longer on hold. It is therefore no surprise that when parents separate, we are increasingly faced with disputes about whether one parent should be permitted to move away with the children abroad.
Understandably, these are often some of the most difficult decisions for parents and they are frequently incapable of being settled by agreement, meaning a court process is often necessary. The upset to the children and the parent left behind cannot be underestimated, nor can the impact on the parent wishing to relocate if they are forced to remain and abandon their plans.
What should I do if I want to move abroad with my children?
If you wish to relocate and take your children outside of England and Wales you will need to obtain the consent of the other parent. However, if the other parent refuses to consent you will need to make a court application for permission to move.
It is important to obtain early legal advice to discuss the strengths and weaknesses of your case and plan the best strategy to try to achieve a successful outcome.
Can my ex stop me relocating?
The other parent can refuse to consent to the move. If they believe that you may seek to leave the country without their consent or the court’s permission, they can apply for a prohibited steps order to prohibit you taking the children out of the UK. If granted, this would usually remain in place until the court determines your application to relocate. The other parent can also oppose your court application for permission for the children to relocate. They would need to show why they believe it is in the children’s best interests to remain in the UK and they could apply to the court for the children to instead live with them full time.
How would the court approach my application?
The court’s view on this issue is that the welfare of the child is paramount and they will consider what is in the children’s best interests by reference to the “welfare checklist”. This involves looking at how the children’s physical, emotional and educational needs would be affected by the proposed move, how they would be affected by the change that any proposed move would bring, the child’s own wishes and feelings as far as they can be ascertained, bearing in mind their age and understanding, and how capable each parent is to meet their needs. The court will analyse the positives and negatives of the children going or staying.
Whether you are considering relocating abroad or have concerns your ex may be planning such a move and don’t believe it to be in your children’s best interests, it is important to seek legal advice early to have the best chance of making or opposing a relocation application.