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Moving away with the kids after separation

23 Jun 2016

These days parents are choosing to share the care of their children more equally after they separate and so relocation, even within the UK, is becoming a more prominent issue. The UK for this purpose is defined as England, Scotland, Wales and Northern Ireland, but excludes Isle of Man and the Channel Islands.

If a parent has a Court Order that states that the child lives with them, this does not necessarily permit a move within the UK. Similarly, if parents have a Court order for shared care, where the children live with both parents, this will not necessarily prevent a move within the UK.

If you want to relocate and your ex-partner does not agree, the correct procedure would be to apply to the Court for a Specific Issue Order under the Children Act 1989. Conversely, if you are a parent wanting to prevent your ex-partner from moving with the children you can apply to the Court for a Prohibited Steps Order under the Children Act 1989.

Historically the Court’s approach to applications has been that the person with whom the child lives, should be able to reside anywhere they choose within the UK. The Court was reluctant to place restrictions on where a person can reside and would only impose them in ‘exceptional’ circumstances.

However more recently in the case of Re C (internal relocation) the Court of Appeal stated that an application by a parent to move with their child to another part of the UK will be determined by the child’s welfare, not the ‘exceptionality’ test. The Court will usually be resistant to prevent a parent from exercising their choice of where to live within the UK unless the child’s welfare requires it. The Court will consider the practicalities of the child spending time with their other parent, and will try to determine whether there is any way to make this work. The Court considers the interests of the parents, however, if it is not possible to accommodate everyone’s wishes, then the best interests of the child will prevail.

When determining the welfare of the child the Court takes into account the following factors:

  • The wishes and feelings of the child concerned;
  • The child’s physical, emotional and educational needs;
  • The likely effect on the child if circumstances changed as a result of the Court’s decision;
  • The child’s age, sex, background and any other characteristics which will be relevant to the Court’s decision;
  • Any harm the child has suffered or may be at risk of suffering;
  • Capability of the child’s parents (or any other person the Court find relevant) at meeting the child’s needs; and
  • The powers available to the Court in the given proceedings.

Decisions are made on a case by case basis, depending upon the welfare of the child and circumstances of the particular family.

If you would like to discuss any of the points raised in this article, or if you are looking for advice regarding the relocation of a child, please contact Stephanie Layton, specialist family law solicitor at Hay & Kilner.

Call: 0191 232 8345  

Email: Stephanie.Layton@hay-kilner.co.uk