Family Law: Relocating with children

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Jemma Jones, Partner in the BPE Family team, looks at what happens when one parent wants to relocate with their children against the wishes of the other parent.

Sometimes, after a separation or divorce one parent will consider moving location.  This could be to return home, for a fresh start, as a result of work opportunities or needs or to be closer to a wider support network of family and friends.  If there are children involved, this can cause tensions and disagreements between parents who both naturally want to be close to their children.  Cases that involve one parent applying to relocate with the child(ren) are some of the most emotive that we have to deal with.  Whether a relocation is out of the jurisdiction to another country or within the jurisdiction to another county, the impact, whether the Applicant is successful or not, is far reaching.   There is sadly no win-win in cases such as these.  They are very likely to be determined within the family court system because there is ultimately no middle ground upon which to negotiate and so less or no compromises to explore.

The law that applies to how these cases are dealt with has changed significantly over the last 20 years.  In 2001, a Court of Appeal decision (Payne v Payne) placed significant focus on the primary carer, often the mother, and the impact on her should she not be allowed to relocate. Much of the change in guidance and subsequent cases acknowledges that the world we live in now often sees parents sharing the care of the child(ren) rather than there being an absolute “primary carer”.

Courts are now required to revert back to the welfare checklist and look at what is best for the child overall. They must do this by looking at the scenario for the child in accepting or rejecting the application to move on each and every factor.  This is to avoid the left-behind parent’s case being side-lined as was often the case when the rules of Payne v Payne were applied. However, often one of the factors to be looked at is, if the application is refused, how unhappy will the applicant parent be and what impact will that have on the child(ren).

A successful application to relocate must include a fully formulated plan in terms of the practicalities of the move and also how the future relationship of the child(ren) and the parent they are moving away from will be preserved.  Similarly, opposing a relocation application is about drawing out the negative impacts on the child(ren) or any flaws in the practicalities of the Applicant’s plan to move.  These are not cases that can easily be dealt with without proper legal representation and the team at BPE are very happy to speak with any parents finding themselves in this situation.

If you are considering relocating with your children and would like advice on how to best approach the situation or if your former partner is looking to relocate and you would like advice, please contact Jemma Jones at jemma.jones@bpe.co.uk or call 01242 248287 or another member of the BPE Family team

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