Even if your divorce has proceeded relatively smoothly and with minimal animosity, things may change if one of you is considering a relocation. A decision by the parent who is the primary carer of the children of the relationship to move away, taking the children with her, is likely to sour even the most amicable of post-divorce relations between ex-partners.
If you are unable to reach an agreement with your former partner about a move away, and future contact arrangements between the remaining parent and their children, the courts will intervene. This could be in response to an application for permission to make the move, or equally a pre-emptive application to prevent the relocation. Whether it is you or your former partner seeking to relocate, there are a number of important points to consider.
The child’s welfare takes precedence
Whatever the reason for the relocation, the courts must always give precedence to what is in the best interests of the child. As with any decision the courts have to make relating to the upbringing of the child, the welfare principle is paramount. Although there are a number of reasons why the relocation may be on the cards – the parent has a new job, or wishes to return to the place they were brought up to be close to family or is simply convinced that the move will deliver a better quality of life – it is what is in the child’s best interest that is the priority.
Geography may have a practical impact
While it makes no difference, procedurally, where the parent plans to relocate, the consequences that stem from a move overseas, particularly to a non-EU or non-Hague Convention country bring added complications. If there is already a child arrangements order in place, there is an automatic ban on removing the child from the UK for more than a month without written consent of all those with parental responsibility. Attendant complications of a move abroad include the enforcement of contact arrangements and, beyond that, the practicalities of maintaining contact between the child and the remaining parent.
Motivations should be well defined
Bearing in mind the overriding principle that any decision must be in the best interests of the child, the courts will look at a number of other factors including the motivations of the parents – both the parent looking to move and the parent seeking to prevent the move. If the parent considering relocation is motivated by a desire to interrupt the relationship between the child and the other parent, or the parent opposing the move does so to thwart the former partner, the courts will take a dim view and act accordingly. Both parents need to have thought through the consequences of the actions they take. The relocating parent should be able to demonstrate they have a plan in place for housing, schooling, employment; equally, a parent opposing the move, or applying for the child to stay with them, needs to have a plan in mind for the future.
Each case will turn on its own facts
Every situation – every child – is different. It is impossible to predict the outcome of a relocation case based on what has gone before, because the courts must look at the situation before them on the day. They must be guided by the welfare principle and have regard to various guidance but ultimately the court will make an individual decision in the individual case before them. Whichever side of the application you are sitting on, it is crucial to present your evidence in the best way possible.
Discussion and agreement is usually the best course of action
It may seem impossible, but if you can discuss your plan for relocation and reach agreement about future contact arrangements between the parent who remains and the children following the move, then so much the better. Discussion can be through lawyers if necessary, or mediation if face to face negotiation is too difficult to contemplate. The benefit is that you are more likely to reach a result that is flexible enough to be in the best interests of the children whilst accommodating the needs and wishes of both parents.
If you are considering a move which will involve taking a child or children away from the other parent involved in the child’s life, or are faced with the prospect of your child moving away as the result of the relocation of your former partner, there are a number of options open to you. These are very sensitive and often time critical case, and the sooner you take legal advice, the better.