by Andrew Weeden | McKenzie Friend in Cambridge and Ely
It happens. Once the dust has settled and the two of you have parted ways, one or other of you wants to move home. A change of scene. To be nearer to family. To get away from an abusive past. And in Law, it is known as ‘Internal Relocation’.
The first question on a resident parent’s mind is — can the other parent stop me from leaving the area?
Let me start with the simple answer. It depends.
The Law breaks relocation into two types –
- Internal Relocation
- External Relocation
Internal relocation means moving anywhere within the United Kingdom (not just England or Wales).
External relocation means moving overseas (referred to as outside the jurisdiction).
This article deals with internal relocation only.
There are many reasons why a separated parent may choose to move away. Perhaps they joined their former partner for love. Or maybe they came to an area because of work opportunities.
It matters not what the reasons were for being where you are.
And to a similar extent, it does not matter what your reasons are for wanting to get away.
The general reasons for moving away are –
- Making a fresh start
- Getting away from an abusive ex-partner
- Work opportunities
- To be nearer to family and friends
- A new love interest
So what is the Family Court’s view on relocating?
When it comes to Children-related matters, the Court considers what is known as the ‘paramountcy principle’. This means the welfare of the Child and their best interests.
Section 1(3) of the Children Act contains what is known as the Welfare Checklist.
So the question asked is — Is a relocation in the best interests of the Child?
Again, the answer is.. It depends.
The Child Arrangements Order process includes certain elements which are established to better inform the Court about the family and the background of the case.
What are these elements?
- The Safeguarding Letter
- Non molestation Orders
- Practice Direction 12 J Fact-Finding Hearing
- Section 7 Report
The Safeguarding Letter is prepared by Cafcass and discovers the reasons for the Child Arrangements application. It looks at welfare concerns, background criminal records, Local Authority involvement with the family and both parents concerns about each other.
A Non molestation Order is a protective order issued by the Court which stops one parent from bothering the other (and bothering them when they have the children of the family).
Practice Direction 12J and the Fact-Finding process will test allegations made in relation to domestic abuse and/or child abuse and reach a conclusion on fault.
A Section 7 Report will bring everything together and involve in-depth interviews with the parents and the children before forming a recommendation to the Court about Residence and Contact.
So, if the move away is supported by a finding of domestic and/or child abuse, where there may be a non molestation order in operation and where the section 7 report recommends limited, supervised or no contact, a move away is going to be less contested, for example.
However, where there is are no allegations of domestic abuse (or the Court has already decided that there is no need for a Practice Direction 12J Fact-Finding hearing), and if the non resident parent enjoys contact with the children, the likelihood is that a relocation WILL be contested.
Contesting relocation does not mean that you cannot move away
Any legal adviser, whether it be a Solicitor, Barrister or McKenzie Friend, should and will recommend to the non resident parent that they should apply for a ‘Prohibited Steps Order‘. To stop the child being moved to another area.
This is usual. And it means that the Court should be asked to decide if the relocation is reasonable and in the best interests of the Child.
If you look at it from the perspective of the non resident parent, it is natural to want your Child to be relatively nearby and in regular contact. Even if contact is only the ‘standard’ of alternate weekends with one day during the week.
There is no doubt that, if the Child lives a few hundred miles away, it will make present contact arrangements largely unworkable.
It becomes even more of a challenge if the non resident parent enjoys a shared care arrangement and normally sees the child every week or on alternate weeks.
How should you work out what is in the best interests of the Child?
Ideally, where you can, talk things through with your ex-partner. If they have had regular contact with your Child, consider their feelings about not seeing the Children, if you move away.
And ask yourself, most importantly, how your Child will feel if they cannot see their mother or father in the same way as they have up to now.
Recognise that the two most important factors for your Child’s happiness are –
- Stability; and
A move will change both of these.
Try to avoid the Family Court if you possibly can.
Consider trying mediation as an alternative route to working out how the future will look for both resident and non resident parent, as well as for the Children.
Does a shared care arrangement have to be equal?
Not necessarily. There is Caselaw from the Court of Appeal which states that a ‘shared care arrangement‘ can still exist where one parent has, perhaps 60% of the children’s time, while the other enjoys 40%.
Such Caselaw exists because parents before you challenged Family Court decisions and the upper Courts created a precedent which will apply to future cases.
What if we cannot come to an agreement on shared care or contact after I relocate?
If you have tried talking, gone through mediation, and still cannot agree how to share your children if you move away, the only choice is to make an application to the Family Court and let the Judge decide what should happen in your case.
If you ex-partner has already submitted a C100 application for a Prohibited Steps Order, to stop you from leaving, then you should submit a C2 cross-application where you request the Court approval to relocate. And within it, you set out what arrangements will become, should the Court give you leave to move away.
What alternate arrangements can be made?
In cases where the upper Courts dealt with appeals of Family Court decisions, usually the non resident parent will have the Children for all half terms and most of the school holidays. A provision will generally be made for summer holidays, so each parent can take the children on vacation. And Christmas Days are alternated.
Where long weekends can be arranged without the travelling being a huge imposition on the Children, then try to consider granting some long weekends.
Also, think about sharing the cost of travelling, and the travelling itself, with your ex-partner.
Sometimes it helps to put yourself in the reverse position — if the Children lived with your ex-partner instead of you, and they wanted to move away, how would you feel and what would you be looking for in acceptable alternative arrangements?
The relationship between the Children and the non resident parent
Be warned, if the non resident parent sees the Children regularly, under the standard or some form of shared care arrangement, and proposed relocation is likely to damage or eliminate that relationship over time, the Family Court and the upper Courts are not going to sanction a move away.
They will, instead, impose a Prohibited Steps Order against you. In more serious cases, where the Child has family and roots in the non resident parent’s community, the Family Court might switch residence of the Children and you become the non resident parent.
Court applications are expensive. Appeals are incredibly expensive with no guarantee of success. Wherever possible, attempt to resolve this between yourselves or through mediation. You might not be able to get everything you want, but if your Child is not supportive of a move, or you have made unreasonable expectations on the non resident parent, you will find the process very challenging.
If you are thinking of moving, come and talk to me first.
If you are a non resident parent and you are facing your Children moving away, come and talk to me about what steps you can take to protect your Children’s rights to spend time with you.