Relocation after divorce: legal considerations when moving with children

Major life changes often beget other and consequential life changes. By any measure, divorce counts as a major life change and, many times, leads to another major life change, which is relocation, either within the UK or abroad.

Relocating after a divorce is not uncommon and there may be many reasons why a divorcee may want to move, ranging from career reasons to returning to the land of their birth or for financial reasons. But, regardless of how good the reason may be, a divorcee who has custody and care of the children must take the law into account before moving.

The relevant law

Assuming you have parental responsibility, the law holds that, in order to relocate the children, either within the UK or abroad, you must obtain the agreement of anyone else who has parental responsibility (usually the other parent) or the court.

Taking a child out of the UK without either the agreement of the other parent or permission of the court is considered to be "child abduction" and criminal penalties may be applied to any parent found guilty of this offence.

Ideally, the party wishing to relocate should try to reach an agreement with the other parent and anyone else who has parental responsibility. If an agreement is reached and the other parent is happy with the arrangements, then that settles the matter. However, if such an amicable agreement is not possible, then the relocating parent must apply to the court.

The court’s approach

In accordance with the Children Act 1989, the court will always be guided by what they consider to be best for the child(ren). For relocation applications, the court will likely consider the following:

  • What the child(ren)’s views would be in respect of the proposed move
  • How the child(ren)’s physical, emotional and educational needs will be affected by the proposed move
  • The likely effect on the child(ren) of the change that the proposed move would bring
  • The relevance of the child(ren)’s age, sex and background in relation to the proposed move
  • Whether the child(ren) has suffered harm or is likely to suffer harm
  • How capable each parent is of meeting the child(ren)’s needs

The court will examine all of the evidence in light of these considerations.

Other relevant factors

There are matters that the court will look at before reaching a decision:

  • Does the applicant have a genuine reason for wanting to relocate? If the wish to relocate is to be close to family or a social support network or for a new job or career, then that is likely to be considered genuine. However, if the applicant wants to relocate the children simply as a means of denying the other parent access to them, then the application will likely fail.
  • Has the applicant made solid proposals and practical arrangements for such things as accommodation, schooling, earning income, the existence of a support network and, perhaps most significantly, arrangements for the other parent to spend time with the children and maintain direct and indirect contact.
  • If the application succeeds, will there be any detrimental effect on the other parent that, in turn, harms their relationship with the child(ren). There is a presumption under English law that both parents should be involved in a child’s life, unless evidence to the contrary can be shown. The courts will be proactive in ensuring that each parent has a role to play in the child’s life.
  • What would be the impact of the application being refused? Would the applicant relocate anyway, but without the child(ren)? If the applicant was, in effect, forced to stay where they are, would this have a negative effect financially or emotionally? Are there any other options?

If you’re divorced and you want to relocate with your child(ren), then the first thing you must do is try to reach an agreement. If that proves impossible, then you must apply to take a child(ren) abroad and you will need expert professional legal help.

If you’re a parent and your ex-spouse wants to relocate with your child(ren) then you also need to seek legal advice, regardless of whether you agree to the relocation or not. If you do not agree, then you need to be advised on where you stand in relation to any court application and what representations you need to make.

For further information and trusted legal advice regarding children disputes, get in touch with us at Carlsons Solicitors.

FamilyNathan Wilkins