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17.03.21

Relocation and child contact arrangements during the pandemic: what should be considered?

Over the last year, as we have gone in and out of lockdown, many of us have taken the opportunity to consider possible changes to our lives when the world returns to a sense of normality.  One major change that has been considered by many is relocation, often where individuals or families are looking for a slower pace of life - homeworking freeing many from city life. Where parents are no longer living together, there are various considerations to be made in order to maintain child contact arrangements, regardless of whether a court order is in place.

Relocating internally

The Covid-19 pandemic has significantly altered the way in which the majority of us work, with many presently working remotely. This has presented a situation in which many parents are wishing to relocate to different parts of the country, as demonstrated by recent reports of a large increase in house moves to ‘out of city’ locations. It is therefore, no surprise that London’s population is set to decline for the first time in more than 30 years, falling by more than 300,000, the first drop since 1988.

Even if there is no Child Arrangements Order in force, the consent of any person with parental responsibility is required before a child relocates within the jurisdiction. A mother always has parental responsibility for a child and a father will have this if: he is married to the mother at the time of the child’s birth, he is on the child’s birth certificate, there is a parental responsibility agreement or it is ordered by the court.

If it transpires that an ex-partner is not in agreement, then the parent wishing to relocate may be left with no alternative but to make an application to the court for permission to relocate by way of a Specific Issue Order. Alternatively, if the planned internal relocation is likely to be considered by the ex-partner as not being in the child’s best interests, the proposed move may be challenged by way of a court application, known as a Prohibited Steps Order.

Where court proceedings are necessary, it is important the party wishing to relocate with their child can demonstrate a well considered plan which is supported by documentation. This is particularly important in the current climate, with the difficulties which can be faced during remote hearings, to ensure the party is able to get across their thoughts and concerns.

Such an application will be determined by the courts’ view as to what is in the child’s best interests, with the child’s welfare being the court’s paramount consideration in deciding upon such an application (Part 1 Children Act 1989). In deciding what is in the child’s best interests, the court will have regard to various factors, including:

  1. the ascertainable wishes and feelings of the child concerned (in light of their age and understanding);
  2. the child’s physical, emotional and educational needs;
  3. the likely effect on the child of any change in their circumstances;
  4. the child’s age, sex, background and any characteristics of theirs which the court considers relevant;
  5. any harm which the child has suffered or is at risk of suffering;
  6. how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs; and
  7. the range of powers available to the court.

Any application for relocation, therefore, is not something which is taken lightly by the courts and the court will need to be able to consider carefully and in depth the specific facts of the individual case, to ensure the proposed relocation will be in the child’s best interests.

What if there is a Child Arrangements Order (‘CAO’) in place?

If contact is still able to take place in accordance with the CAO and the Order specifically states with whom the child is to live, there is no need for the parent with whom the child lives to obtain permission from the other parent.

It is possible for the parent opposing the relocation to make an application to the court, to place a condition upon the CAO regarding the specific location where the child is to reside. This, however, will only be applied in exceptional circumstances.

Relocating overseas

For those with families overseas, the pandemic has made the ability to access their support network essentially impossible, and inevitably has made the idea of relocating overseas something to be considered.

As with internal relocation, a parent considering relocating internationally faces the hurdle of having to obtain their co-parent's consent or if the matter proceeds to court, having to convince a judge to make an order notwithstanding the co-parent’s objections. Court applications to move overseas, as with internal relocation, will be determined by what the court considers to be in the child’s welfare interests (as above).

Due to the pandemic, and the difficulties which it presents, there are also other factors which the court is likely to consider as being increasingly more significant than they once were, for example:

Destination

The family’s connection to the intended destination will be of significant importance to a judge considering the application. The stronger the existing connection to the country, the better chance of success and the judge will be more willing to view the move as being in the child’s best interest. If a child has connections to more than one country, the parent wishing to relocate will need to show the importance of the child being able to gain experience of the culture of the intended country first-hand, whilst also being able to support the child’s understanding of their other heritage whilst overseas.

If there are no existing connections to the intended country, it will be fundamental the parent wishing to move can demonstrate a well thought out and researched plan. The greater level of detail presented, the better, as this will demonstrate to the court and any Children and Family Court Advisory Support Service ('CAFCASS') or social worker involved, that the move has been planned with the child’s welfare at heart.

Distance

Before Covid, cheap direct flights available to all manner of international destinations made it easy for the parent wishing to move abroad to argue that the intended country was easily accessible for the parent left behind. As a result of the current crisis, entry into such countries is now dependent upon quarantine and lockdown requirements of the UK and the country in question. Such requirements have made the difficulties in maintaining contact between parent and child in different countries apparent and have shown the fragile foundations upon which pre-covid arrangements were based.

Given the frequent last-minute changes which we have all experienced with the rules surrounding international travel, it is likely applications to relocate internationally will be scrutinised closely during the pandemic. However, it remains unclear whether judges will view the current crisis as an unprecedented issue, or something which will mean parents wishing to relocate further afield in future will face greater scrutiny when trying to convince the court the move is in the child’s welfare interests.

Maintaining relationships with both parents

In considering the child’s emotional needs, the likely effect on them of the change in circumstances brought about by relocation, and any harm which the child is at risk of suffering if relocated, the court will consider the benefit to the child of maintaining healthy relationships with both parents (both of whom together can provide a larger support network for the child as they grow up, and both of whom are able to give them a different perspective on life and have different lessons/experience they can impart) and to what extent that can still be achieved if the child is relocated.

The court may feel this can be achieved in the event of relocation by regular visits in person, scheduled video calls, or for older children staying in touch in a more ad hoc manner via phone and messaging services. Maintaining a relationship with both parents is one factor the court will consider when determining what is in the child’s best interests, but it has to be balanced alongside other factors.

In summary, the focus of any application relating to relocation is based upon the courts’ view as to what is in the child’s best interest and which allows both parents to continue to have a meaningful relationship with their child. The wishes, needs, and desires of the parents will only be taken into account when determining what is best for the child. Any individual considering relocating right now should therefore really ask themselves whether the relocation is a genuine necessity and if the relocation is in fact in the child’s best interests.

 

Brett Wilson LLP's family lawyers can provide expert advice on relocation issues.  They can be contacted by telephone at 02071838950 or by email.


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Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.


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