Tips And Advice on Relocation Cases

Relocation cases in family law are unique due to their binary nature—the children either relocate or they do not. This dichotomy often leads to highly emotional cases, as the outcome can significantly impact the lives of both the parents and the children involved. The following advice provides best practices for handling these sensitive cases, originally published in the Family
Law Journal’s October 2019 edition.

1. Consider the Legal Position of the Relocating Parent

The legal standing of the relocating parent depends on existing orders and the relocation destination. If a ‘lives with’ child arrangements order is in place, the parent cannot remove the child from the UK without written permission from all with parental responsibility or court
approval. However, they may take the child out of the UK for less than a month without consent under section 13(2) of the Children Act.

Without a ‘lives with’ order, removing a child from the UK without written permission could result in a child abduction offense, even if the other parent lacks parental responsibility. Therefore, obtaining written consent is best practice.

Legal approval requirements are less onerous for relocations occurring within the United Kingdom. However, the parent moving may receive requests for a Specific Issue Order (SIO), a Prohibited Steps Order (PSO), or an undertaking not to move.

If relocation occurs without consent, the ‘left behind’ parent can seek the child’s return urgently. Delays might result in the court favoring the new arrangements from a welfare perspective.

2. Alternative Dispute Resolution: Mediation and Arbitration

Through mediation, which can be an inexpensive and emotionally draining alternative to court proceedings, innovative solutions may be offered. Although relocation is a binary issue, mediation may help uncover and resolve ancillary issues or assist parents in understanding
each other’s positions, thus maintaining a cooperative co-parenting relationship.

The arbitration scheme, launched in July 2016, covers internal relocation cases but excludes international relocations.

3. Timing Considerations

Timing is crucial in relocation cases. It may be necessary to have the application resolved before significant events, such as the end of a school year. Even during proceedings, alternative dispute resolution (ADR) options like mediation should be considered.

4. Separate Representation for Children

While rare, children can be parties to litigation under rule 16.2 of the Family Procedure Rules (FPR) 2010 if it serves their best interests. The court considers various factors before decidingon separate representation, as outlined in Practice Direction 16A of the FPR. If a child becomes a party, a children’s guardian must be appointed per rule 16.4.

5. Understanding the Law

The paramount principle in these cases is the child’s welfare. The court must conduct a global evaluation, considering each proposal’s merits. This approach ensures that all options, including those from the non-relocating parent, are thoroughly assessed.

6. Presenting Evidence

a. Cafcass or Independent Social Worker Reports:

The child’s wishes and feelings, often assessed by a Cafcass officer or independent social worker, are crucial in these cases. The child’s age, maturity, and intelligence affect how much weight their wishes hold.

b. Statements:

Each parent typically provides statements detailing the child’s needs, the potential impact of any changes, and the parents’ abilities to meet these needs. The motivation for relocation and opposition must be examined, including practical details and the potential effects on the non-resident parent.

c. Future Contact:

The feasibility and quality of continued contact with the non-resident parent are critical considerations. The history of promoting the other parent’s relationship with the child is also evaluated.

7. Post-Permission Considerations and Enforcement

If relocation is granted, the jurisdiction typically shifts to the new location under Brussels II bis regulations, with former jurisdiction retained for three months for modifying access rights. It’s essential to obtain appropriate certificates and consider enforcement mechanisms in non-
Brussels II bis countries, potentially requiring a mirror order in the new jurisdiction.

Practitioners must handle relocation cases with care, keeping in mind the long-term co-parenting relationship. While the case may be temporary, the parents’ ability to work together for the child’s benefit is crucial.

For further advice please get in touch with our team today by calling 020 8538 0182 or +44 7857 809932, or you can email us on [email protected].

Please note these blogs are to enhance your knowledge and are not tailored advice, for specific advice please get in touch with our outstanding team.