Re-location after separation must be in best interests of any children

Re-location after separation must be in best interests of any children

Published:

Author: Karen Nicol

Applies to: UK wide

In an increasingly mobile and globalised world, we are often instructed by separated parents who wish to re-locate with a child or children of their previous relationship.

The law provides that if you would like to move a child from their main country of residence, the consent of the other person with parental rights should be obtained first.

If that consent is not forthcoming and you still wish to proceed with the move, a court action is required. The courts north and south of the border make it clear that any separated parent wishing to re-locate abroad with children of the relationship is required to have a detailed, clear-cut plan proving why the move would be in the best interests of the child.

Take the recent example of the case of DH v. GH heard in the Edinburgh Sheriff Court. In the absence of consent from the children's father, the mother asked the court for permission to re-locate to Florida with her three-year-old and five-year-old daughters.

The family had originally moved to Edinburgh in August 2013 and after some time the parents' relationship began to decline. By the time the case was heard in court in March 2015, the parties remained living together but lead entirely separate lives.

Both parents were US Nationals and on this basis the mother wished to relocate back to America, albeit to a different state. Notwithstanding their separation both parents remained actively involved in all aspects of the children's care.

Both parents worked in Edinburgh and the children maintained a close and loving relationship with both sets of grandparents, also based in Scotland. Crucially, relocation to Florida would substantially restrict the contact between the children and their father as well as the wider family.

The Sheriff concluded that relocation should not take place as it was not in the best interests of the children. In reaching that decision the Sheriff noted that the proposals by the mother in this case lacked any elements of planning or consultation - indeed the first the father heard about the mother's plans to re-locate with the children was when the court action was served on him.

This case serves as a reminder that, in both England and Scotland, the general position is that relocation will be permitted only where it is in the best interests of the child or children. The welfare of the child is paramount and outweighs all other considerations, however powerful and reasonable they might be.

While it is true that the position in the English courts previously may have focused to a greater extent on the effect of not permitting re-location, the courts both north and south of the border now both emphasise that the welfare of the child is the main and paramount concern.

Parents do have certain rights and responsibilities of course, but there is no legal principle or automatic presumption in favour of an application to re-locate made by a primary carer. The onus is firmly on the parent who wishes to re-locate to prove a move is in the child's best interests.

In considering a move, parents would be best advised to think about the following issues and questions that could be influential in making any application to re-locate successful. They are based on recent reported English and Scottish cases where the court was asked to decide whether it was better for the child to make an order than to make no order to relocate.

  • The reasonableness of the move. Is the application realistically founded on practical, and well researched proposals?
  • The motive of the relocating parent. Is the application genuine and not motivated by a desire to exclude the other parent from the child's life?
  • The importance of contact with the parent who would be absent.
  • The importance of the child's relationship with the wider family.
  • The extent to which contact can be maintained.
  • The extent to which the child may gain from new relationships.
  • The child's views.
  • The effect on the child of the move.
  • The effect of a refusal of an order to relocate on the welfare of the child is the first consideration, but the impact on the parent, either as the single parent or as a new spouse, of a refusal of the proposal is also considered.

Ultimately, it needs to be shown that the re-location is in the child or children's best interests. Initial discussions through informal negotiation or more formal mediation may assist in making plans and broaching the subject with the other parent.

A separated parent who wants to re-locate should think in detail about proposals for children to maintain contact with the parent who is not relocating, making reference to specific calendar dates. Similarly detailed plans for maintaining indirect contact, e.g. via Skype, should also be considered.

It is also useful to show that you have made detailed enquiries about schooling arrangements as well as proposals for how any relevant school fees are to be met. Any childcare arrangements, such as after school clubs, or details of wider family members who can assist with childcare, can also be presented in evidence.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.