Relocation of Children After Divorce - Part I

What is relocation?
Relocation cases are disputes between separated parents where one parent wishes to change the child’s geographic place of residence. In the majority of cases, the main carer is applying to the court to take the child to live overseas (external relocations), but they can also involve situations where a parent wishes to relocate with the child within the UK (internal relocations). Whereas internal relocations do not legally require the consent of the other parent or permission of the court (unless it can be exceptionally proved upon objection by the left behind parent that such a move would cause harm to the child), external relocations do. With an increase in multi-cultural families, external relocation cases are on the rise. In recent times this area of the law has taken on an added prominence and attracted significant debate and undergone change in the courts.

External Relocations
In this article I focus on external relocations. These decisions are notoriously difficult for the courts, with concerns that the child’s relationship with the left behind parent may suffer and at the very least, that contact will significantly diminish.

Previous Test
For many years the leading authority in this field was the case of Payne v Payne (2001) whose guidelines progressively became rules followed by lawyers. The following test was devised by the court when considering such cases:
• Is the application genuine i.e. not motivated by some selfish desire to exclude (usually) the father from the child’s life?
• Is the mother’s application to the court based on realistic and practical proposals?
• Is the father’s 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 him and his future relationship with the child, were the application granted?
• To what extent would the detriment to the child’s relationship with the father be balanced by the child’s closer relationship with the overseas family?
The leading Judge in the case of Payne stated that where the parent who wishes to relocate (aspiring parent) presents a carefully considered plan, the court should be very mindful of how a refusal of a relocation application would impact upon that parent. For instance if the aspiring parent argued that their health, mental or emotional, would suffer if their request were refused, the court would prioritise this over other factors. At the time of Payne there was less direct focus on the welfare of the child. However, since the case of Payne, there have been many legal challenges and considerable deliberation and change.

Current Focus
The case of MK v CK [2012] (or simply known as ‘Re K’) saw a dramatic shift in how the courts treat relocation cases, with a greater emphasis on the welfare of the child instead of just the impact on the relocating parent. In cases where the child’s care is largely ‘shared’ between two parents, the courts will often now refuse permission to externally relocate a child. However, in cases where there is one main carer the Payne case is still to be referred to, but as a guidance only. In all relocation cases the child’s welfare is now the paramount concern of the courts. However, it is important to remember that every case is unique and any outcome will depend on its own facts and merits.

What to do if you want to Relocate?
If you are a parent wishing to relocate overseas with your children, it is important to properly investigate and research where you intend to live with the children and how this can work practically. Frequently, parties consider how a move overseas would impact on them, instead of how it would be in the best interests of the child. Drafting such a proposal is crucially important to the outcome of a case and a parent in this position should ideally seek legal advice before making any such application to the court.

If you are a parent considering a move overseas and need more information and advice please contact me on natalie.friday@london-family-solicitor.co.uk or telephone number 020 3755 3151 and I will be happy to assist.

Written by Natalie Friday Family lawyer.
PHOTO: KATSUHITO NOJIRI

See this article on divorcedparents.co.uk

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