Relocating with your child: Legal guidelines and court considerations in England and Wales
Removal of a child from England and Wales without consent or court order
If you are the parent of a child who is or has become habitually resident in England and Wales (as to which, see further below), Section 13 of the Children Act 1989 prohibits you from removing your child outside of the jurisdiction without the other’s consent or order of the court. That is, unless you have an order that the child lives with you, in which case you are – in theory at least – permitted to remove your child from the UK for up to a period of one month. However, even if you are in the position of having a “lives with” order, this is not an open invitation for you to take the child away for a month (!) because, in practice, this is likely to impact on the other parent’s (probably court-ordered) time with the child.
Court orders and “lives with” arrangements
There are unlikely to be many court orders these days which give one parent a sole “lives with” order and doesn’t give the other parent regular time with the child such that the theoretical right to head off for a month at a moment’s notice is a real possibility. If you were to do this, it would likely impact on your ex’s court-ordered time with your child which will potentially inflame your ex and your ex could apply to the court for enforcement of the court-order.
Keeping communication open with your ex is key to a healthy co-parenting relationship which in turn will benefit your child’s wellbeing.
Changes in international relocation cases
What can we learn from recent cases decided by the English Court?
Fifteen or twenty years ago, it used to be much easier to obtain permission to relocate internationally with your child, particularly if you were a “going home mother”. To take an example, you are Spanish and had moved to England to be with your English husband, but when the marriage broke down you found yourself isolated and extremely sad. All your friends in England were your husband’s and had evaporated when you separated and all you wanted to do is go home to your friends and the support of your family. Providing you had good plans for where the children would go to school, where you would live and good detailed plans for the children to see their father and his side of the family in half-terms and holidays, you would probably be successful.
Low cost airlines and the arrival of Skype made short haul relocations even easier because in the above example, the father and mother could have a shared care arrangement and a joint “lives with” order (i.e. an order that the child lives with both of them). Assuming the father could work remotely, he could divide his time between England and Spain and have a meaningful involvement in the children’s school and home lives in Spain.
The Court’s decision-making process
The pendulum has well and truly swung back now, however. Anecdotes from Judges and Counsel would suggest that significantly less than 50% of relocation applications are successful nowadays.
This is because, unlike before, when the approach was effectively to look at the relocating parent’s (usually the mother’s) plans and having stress-tested them, unless there was a major problem with them (such as a lack of willingness by the mother to promote the relationship with the father after the move, or violent objections by the children to the move), to give permission, the courts’ decision-making approach has fundamentally changed.
This has been welcomed across the English family law community, because it takes us back to the fundamental principles of the Children Act 1989 and reminds us that international relocations are no different from any decision that the court has to make relating to the care and upbringing of the child: the paramount consideration is and always has to be interests of the child. It also brings the method for determining international relocations back in line with domestic relocations.
In 2015, (Re C [2015] EWCA Civ 1305), the court of appeal overturned a decision allowing a mother to relocate with her 10-year-old daughter from London to Cumbria (a 5-6 hour drive away). The trial judge had (in keeping with the then prevailing caselaw which stated that a primary carer’s right to move internally should only be interfered with in exceptional circumstances, and that if the parent wishing to move would be devastated by a refusal the damaging impact of that on the child would have particular importance). Interestingly, the trial judge went against the advice of the CAFCASS officer (the court appointed social worker who acted as an expert witness on the child’s wishes and feelings and general welfare), whose evidence was that the child’s relationship with her father was crucial, and that losing mid-week contact with him as well as everything else she would lose from her established life in London would be too damaging for her.
The court of appeal allowed the father’s appeal and clarified the method that courts must adopt in deciding these relocation applications (whether internal or international).
The court must look at the mother’s plan for the child and her future alongside the father’s plans, and must weigh up the pros and cons of each, taking careful account of each of the factors on the statutory welfare checklist.
Application of the welfare checklist in relocation cases
So what are the English court’s welfare checklist factors and how do they apply to relocation cases?
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The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
The court is required to take the wishes and feelings of the child into consideration in all cases relating to the care, living arrangements and upbringing of a child. The older the child, and the more mature his or her understanding of what the move would really mean, the more weight the court will give to his or her expressed feelings. For example, in Re C (above), the child expressed a strong wish to move to Cumbria when she was speaking to the CAFCASS officer, but the CAFCASS officer nevertheless came to the conclusion that being only 10 she did not properly understand the extent of the loss she would experience to her relationship with her father (a relationship that she described as “crucial” to C’s wellbeing). The child did not understand that her mid-week overnights with her father and her father’s involvement in her school life would effectively come to an abrupt end, and she did not fully understand how far away Cumbria was from London and that she would only see her father once a fortnight. The child was reported as saying that she would miss her dad a lot but it was ok because she would see him “most weekends”, which was not true.
Ordinarily, it will be the court-appointed social worker who speaks to the child to ascertain their wishes and feelings and then gives evidence in the form of a report, which they can then be cross-examined on at trial. In very rare cases, the Judge may speak to the child themselves but this is not a recommended way to conduct these cases. The court needs to be sure that what it is hearing are indeed the true wishes and feelings of the child and they are not simply reflecting or parroting the views of one or other parent. The court appointed social workers are trained to get to the bottom of the child’s true feelings, and usually provide unique and helpful input and recommendations which are more often than not followed by the judge.
An example of where the children’s wishes and feelings were of significant importance was the case of S v S (Relocation) [2017] EWHC 2345 (Fam) in which a Russian father applied to take his two sons, aged 15 and 13, to live with him, his new partner and their child in Switzerland. The boys’ Russian mother, who lived in England, had been their primary carer and opposed the application. The children had their own legal representation. The boys’ relationship with mother was breaking down, and they had expressed their unhappiness with their lives in England. The independent social worker recommended the relocation and both boys were enthusiastic about it. Ultimately, the relocation was granted. The court felt that going against the boys’ strongly expressed wishes might cause them to blame and be resentful of their mother, but it was hoped that a move to Switzerland might improve their extremely poor relationship with their mother.
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The child’s physical, emotional and educational needs
The court is required to consider the child’s short and long term physical, emotional and educational needs and decide which plan meets these needs better. This is where the side by side consideration of the mother’s plan next to the father’s is especially important. The court will look very carefully at how the mother’s plan for the children to grow up (say) in Spain (including housing, schooling and social life) meets the children’s needs and whether it does so better than the father’s proposal to continue with the current division of time between parents (often 50/50 in England-based families especially where both parents work), to continue with their current school which both parents chose carefully when they were together as a family, and to continue with the rhythm of their current home life.
In most cases, the child’s physical needs will not be a matter of contention because they will be met be met by both mother’s and father’s proposals (although you may have a child with complex medical needs that actually might be better met in one country than another). It is the child’s emotional needs that often need careful and complex consideration. It is no longer accepted as a given that a happy primary carer will equal a happy child. Furthermore, courts are much more alive to the fact that children’s emotional and psychological needs are not static. They will change and develop as they become older and the judge will want to be sure that whether the child stays or goes, his or her needs can be met.
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The likely effect on the child of any change in his circumstances
This factor is likely to be the single most important factor in any relocation decision.
Given that it is mostly mothers who apply for permission to relocate, the biggest change that the courts are worried about is the loss that the child will experience of parenting time with his or her father. This worry is well founded. The statistics are stark, and very upsetting. There have been a number of studies and surveys done all over the world on children losing contact with their father following the separation of their parents. Even without a relocation, the most conservative estimates are that 10% of children lose contact with their father soon after the separation, but some studies put it as high as 60%. Add in an international relocation and the statistics are even worse. If the children move more than 4 hours away from where their father lives, a French study has suggested that the frequency and length of visits starts to drop off within only months of the move, and within 2 years of the move, contact in 60% of cases has effectively dwindled to nothing.
Of course, spending time with and in many cases living with their father, is not the only loss that children would be likely to experience if they were to move internationally. There may be other aspects of their life that are extremely important to them and that they rely on for their wellbeing and stability, such as school, visits with grandma, playdates with cousins and school friends, weekly routines, attending a church or synagogue, playing for their sports teams and so on. These are the things which make a child feel safe and secure and give them a sense of belonging. Removing them can have a devastating effect on a child’s wellbeing. A mother’s case to relocate would usually have to be very strong to justify turning their child’s whole world upside down.
For example, think about the school that you would be putting the children into. Will they go into a local school and will the lessons take place in a language that they are not fluent in? How will they cope with this? Do they need lessons to get them up to speed?
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The child’s age, sex, background and any relevant characteristics
The child’s age will be relevant in a number of ways when it comes to a relocation decision. As we have just discussed, a younger child’s wishes and feelings will not count for nearly as much as those of an older, more mature child. In a similar vein, courts often take the view that a younger child will cope with and adapt to a new environment more easily than older children who will have established real roots in the home where they currently are. The child’s sex may be especially relevant in certain religious communities, or the court may have regard to the presence of any role models and care-givers of the same sex as the child on both the mother’s and the father’s proposals. Regard may also be had to the child’s specific culture or community. For example, is there a suitable mosque for the family to attend in the destination country? Or can the child carry on with his/her therapy that he/she really needs in the new home?
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Any harm the child has suffered or is at risk of suffering
Harm is defined in the Children Act as ‘‘ill treatment or the impairment of health or development”. The court will need to look at and, if applicable, make findings of fact relating to any allegations of historical harm or abuse and consider how to protect the child from harm in the future.
The court’s balancing exercise was carefully carried out with regard to this aspect of the welfare checklist in the case of V and M and K [2020] EWHC 488 (Fam) which concerned a 4-year-old boy whose father had already taken him for a while to India and who sought to relocate there permanently with him. The judge made findings as follows, and held that the child must remain in England.
“The child has experienced some degree of harm in my view as a result of his separation from his mother and his father between July 2018 and July 2019. When the mother returned to England, I do not believe she contemplated such a lengthy separation would ensue.”
Having been reunited with his mother, a further permanent separation from her would, I have little doubt, be distressing for him and could potentially be significantly harmful. The absence of the father from his life will also to some extent, in my view, be harmful. The child needs the presence of loving and supportive parents to help him to achieve as much as he can given his conditions.”
“I consider that there is a significant risk to the child of travelling to India unless and until absolute clarity is achieved that no further litigation is ongoing in India and that further applications by the father will not be made.”
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The capability of each parent, and any other person in relation to whom the court considers the question to be relevant, to meet the child’s needs
The court will need to see that the parents (or whoever it is proposed is to provide the child’s day-to-day care) are capable of putting their child’s emotional needs before their own and, of course, that they are able to meet the child’s physical needs (i.e. they can put food on the table and a roof over their head). Except in the case of tiny babies who are still breastfeeding, where in practical terms, a baby cannot be physically very far away from his or her mother, there is no suggestion that mothers are any more capable of meeting their child’s needs than fathers.
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The range of powers available to the court under the Children Act 1989 in the proceedings in question
The court has a wide range of orders it can make, including protective orders and passport orders if it considers that a child is at risk of harm, but the two most common orders the courts will either make or decline to make when it comes to relocation applications are two sides to one coin – a prohibited steps order if the parent who wants the child to stay has made the application or a specific issue order if it is the relocating parent who is the applicant.
Case law on international relocation
Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882 related to a 12-year-old daughter (L) of divorced parents. L’s mother was a German national and the father was English.
After financial remedy proceedings were concluded between the parents, the mother made an application for leave to relocate permanently with the daughter to Germany. The trial judge granted her application for leave to remove.
The issue on appeal was whether the judge had allowed herself to be deflected from a proper welfare analysis in order to do justice between the parents and had allowed herself instead to be constrained by the narrower guidance given by the court in the former leading case of Payne. The Court of Appeal, in deciding to set aside the relocation order, decided that she had. In particular, the judge had failed to consider “the erosion in the quality of the relationship between father and daughter” if she were to move to Germany, and the Court of Appeal found that the judge had failed to carry out “an evaluation of the harm” to the child of permission being refused as against “the harm that would result from separation from her father should she move”.
In the judgment, the Court of Appeal distanced itself from out-of-date “gender-based assumptions” about parental roles in relation to the care and upbringing of children and the absence of the child’s participation in the decision-making process. The Court allowed the appeal, set aside the relocation and child arrangements orders made by the judge and directed a rehearing of the application before a different judge.
This was the case that first made clear that where there was more than one proposal before the court, a welfare analysis of each proposal would be necessary. Each realistic option for the child’s welfare should be validly considered on its own individual merits. Not only was it necessary to consider both parents’ proposals on their own merits and by reference to the child’s views, but it was also necessary to consider the options side-by-side in a comparative evaluation.
In V and M and K [2020] EWHC 488 (Fam), the court set out the “new” holistic principles once again:
“In relocation cases there is now no priority afforded to the application to relocate, as opposed to any application for a Child Arrangements Order. There is thus no lead application and to approach relocation cases in such a way is to fall into the linear approach trap, which the authorities now clearly disapprove of. The essential task is to weigh up two or conceivably more competing options as to the country in which the child should reside and the parental care framework, in which the child will live.
In my holistic evaluation of the merits of the competing options I am satisfied that the mother’s proposal will best promote the child’s welfare in the short medium and long term. Although there are some negatives or uncertainties both now and into the future the totality of the plan presents the best overall balance in terms of meeting his needs and minimising risks. The stumbling block in the father’s proposal is not only the uncertainty over how a transition would be achieved but also the particular risks to the relationship between the child and the mother were the child to go to live in India.”
How Do I Know if These Rules Apply to Me?
How do I know if these rules bite on me? At what point does my child become habitually resident in England and Wales?
Imagine you and your spouse have been posted to England from your home country for a period of two years. You are 4 months into the posting, your spouse reveals they have been having an affair and is leaving you. You naturally want to get on the first plane back home with the kids. Can you?
Each case turns on its own facts (and you should always take tailored legal advice), but the answer is probably not. Chances are, if you have rented a home in England, have set up bank accounts and put your children into school in England, you – and most importantly they – have acquired habitual residence in England. This often happens relatively quickly after arrival. So this means that, if you wanted to take them back to your home country, you will have to seek the consent of the other parent or if that is not forthcoming, the permission of the English Court.
