06th Nov 2020

Now I’ve divorced, can I move away with the children? Relocating within the UK post pandemic

By Alexie Bonavia

Relocating in the UK after divorce or separation

 

Now that I’ve divorced, can I move away with the children in the UK?  FLiP Associate Alexie Bonavia answers Frequently Asked Questions.

The Covid-19 pandemic has turned our lives upside down. Relationships have been placed under strain, jobs have been lost and, for many, moving closer to friends and family has become ever more important. With the second lockdown already underway, many divorced and separated couples will be seriously contemplating an internal relocation and how best to approach this with the left behind parent.

But is it possible to move away with your children within the UK once you have divorced or separated? What are the implications for the left behind parent and how do you organise this within the legal framework?

This blog is aimed at assisting those individuals who are genuinely considering an internal relocation. But it also considers the implications for the left behind parent who may suspect that their ex-partner is in the process of planning an internal relocation.

First point to note, there is no automatic restriction on moves within the UK. The UK is defined as Great Britain (that is England, Wales and Scotland) and Northern Ireland but it excludes the Isle of Man and the Channel Islands. This is the main difference between what is considered an internal relocation and an external relocation. There is guidance set out by way of case law about the correct approach to internal relocation disputes.

What do I do if I believe my ex-partner wants to move away with our child?

If you suspect that your ex-partner is planning on moving away with your child within the UK it is definitely worth taking all necessary precautionary measures. In the first instance, this would include raising your concerns directly with your ex-partner and consulting a family lawyer. The correct approach to adopt depends on the co-parenting relationship you have with your ex-partner and whether you believe you can have an honest and constructive conversation with them about what is in your child’s best interests. There is, however, no harm in requesting an initial first meeting with a family lawyer who will be best placed to guide you in terms of the appropriate strategy to adopt and the legal implications. In certain cases, the left behind parent may be advised to make an urgent court application to prohibit the relocation (“prohibited steps order”).

What do I need to consider if I wish to relocate within the UK with my child?

Any proposed relocation is a big deal and requires careful consideration in terms of the likely impact the relocation will have between your child and your ex-partner.

If the relocation is not considered in the child’s best interests, then it is worth bearing in mind that the move may be challenged by your ex-partner by way of a court application. You could also run the risk of your ex-partner alleging parental alienation because of your proposed move and the fact that you would limit their contact with your child. Doing all the necessary homework is key. Consider some of the following factors:

  • How will the child maintain a meaningful relationship with the parent left behind, and how and where will they spend time together? What is the proposed geographical distance involved?
  • Do you have a close support network in your proposed relocation area? Who can you rely on in the case of an emergency?
  • Have you considered appropriate schools and whether they have availability for your child to attend? Would your child have to take any exams in advance? Have you attended an open day (albeit virtually in the current Covid-19 climate)?
  • How do you think your child would feel if you told them you were to relocate?
  • How will you manage school holidays and are you happy for the child to travel abroad with the other parent?
  • Is your proposal well thought through, child focused and realistic?

If matters do regrettably need to be determined at court, you would need to demonstrate a well thought through and considered plan with all necessary supporting documentation. The court process can be long and challenging and particularly so considering the current Covid-19 climate. With remote hearings now the “new norm” many individuals currently involved in court litigation, struggle to understand what is being said by the judge online and can feel frustrated that their thoughts and concerns are not being appropriately heard through this new digital forum.

Fundamentally, any decision regarding the child’s upbringing is not taken lightly and the court would need to carefully consider the specific facts of the case and whether the proposed moved is in the child’s best interests.

If you maintain the view that the proposed relocation is in your child’s best interests and you have a clear well thought through plan, then you should instruct a family lawyer to assist you in either preparing the relevant court application or alternatively, seeing if there is a pragmatic and sensible way to reach an agreement with your ex-partner outside the court arena.

There is a Child Arrangements Order in place, do I therefore need my ex-partner’s consent to relocate?

Where there is a Child Arrangements Order in force which specifically states with whom the child will live, there is no need for that parent to obtain permission from the other parent (as long as contact can still take place in accordance with the order). If there is a Child Arrangements Order in place, the parent opposing the move may also make an application to the court requesting that a condition be placed on the Child Arrangements Order regarding the specific place where the child is to reside. This will, however, only be applied in exceptional circumstances.

The importance of Parental Responsibility and what is it?

Parental Responsibility (“PR”) means all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and his property by law (section 3 (1) Children Act 1989).

  • A mother automatically has Parental Responsibility for her child from birth.
  • A father usually has Parental Responsibility if he is either married to the child’s mother or listed on the birth certificate (if the child was born before 1 December 2003).
  • Same sex partners will both have Parental Responsibility if they were civil partners at the time of the treatment.
  • There are also other individuals who can acquire Parental Responsibility for the child, such as grandparents.

The reason why this is worth bearing in mind when considering an internal relocation is because any individual with PR may well oppose the proposed move and take all necessary steps to stop you from proceeding ahead.

Again, consider carefully what is the best approach to adopt taking into account your particular set of circumstances. For example, would it be best to discuss your proposed move in a constructive and collaborative setting with all those who hold PR to avoid the risk of arguing and litigating in court? Depending on the specific facts of your case, this approach may not be viable. One also needs to consider the likely costs implications if the internal relocation is contested and a court application is issued.

What is the best approach to adopt?

There are many ways of reaching a suitable agreement in respect of a proposed internal relocation move without the need to litigate in court. However, this is very much dependent on the co-parenting relationship you have with your ex-partner. Notwithstanding the current Covid-19 restrictions, parents can discuss matters via Zoom to see whether an agreement can be reached between them and be honest with one another in terms of their current views and wishes to relocate.

Communication is key. It is also possible, to get a neutral and independent third party (such as a mediator) to assist in reaching an agreement on the proposed relocation. This sometimes helps couples reach a sensible compromise where the left-behind parent is then willing to accept the proposal.

The focus is on ensuring that any proposed relocation is in the child’s best interest and allows both parents to continue to have a meaningful relationship with their child. Any decision will be made with the child’s interests and welfare being the paramount consideration. The wishes, needs, and desires of the parents will only be taken into account when determining what is best for the child. The court is not interested in what may be best for the parents as individuals.

In summary, any proposed relocation needs to be fully centred and focused on the child and should not be dictated by the parents’ individual needs. It is always best (if at all possible) to be honest and up-front about your proposed intentions with your ex-partner. This will minimise any acrimony which may arise between you and will minimise any potential cost implications.

If, however, it transpires that your ex-partner is not in agreement then you may be left with no alternative but to make an application to the court for permission to relocate. This year has brought about much uncertainty and realistically, no one yet knows how long this new Covid-era may last. With that in mind, children require now more than ever unconditional love, security and stability from both of their parents. Any individual considering an internal relocation right now should therefore really ask themselves whether this relocation is genuinely a necessity and in the child’s best interests.

At Family Law in Partnership we will guide you through the decisions and discussions involved in any move you are considering, offering sensitive, tailored support to resolve the issues you may face.

Alexie Bonavia is an Associate at FLiP. Alexie advises clients on all aspects of family law, including divorce, pre and post nuptial agreements, financial settlements and cases involving international complex trust structures. She also advises parents on children matters including on national and international relocation cases, intractable contact disputes and parental alienation. Alexie’s experience includes cases involving significant assets and those with an international element. Alexie is fluent in Spanish.