Relocating with children after separation – a fine balance

Following the breakdown of a relationship, it is not unusual for one party to want to relocate (with their children) either in this country or internationally. This requires the consent of all parties who have parental responsibility or a court order. Without this, moving children may amount to child abduction, which is a criminal offence in certain circumstances. The recent case of DV v ZV considered the position and highlighted the balancing act undertaken by the Judge deciding in that case ‘the factors in the welfare checklist tend just about in favour of M’s application’ and allowing the mother to return to Poland.

Applications to relocate often involve a move ‘home’ for support and the court has to weigh up the potential reduction in contact with one parent against the impact on the other parent of being refused permission to move. The paramount consideration for the court is the welfare of the children involved. Each case is unique and will turn on its own facts.

The Law

Following the decision in MK v CK [2012] 2 FLR 880 the key consideration for the court will be the welfare checklist set out in section 1(3) of the Children Act 1989 which provides that the Court must have particular regard to:-

1. The ascertainable wishes and feelings of the child (considered in light of her age and understanding)
2. Her physical, emotional and educational needs 
3. The likely effect of any change in her circumstances
4. Her age, sex, background and any characteristics of hers which the Court considers relevant
5. Any harm which she has suffered or is at risk of suffering
6. How capable each of her parents and any other person in relation to whom the Court considers the question to be relevant is of meeting her needs
7. The range of powers available to the Court under the Children Act 1989

Things to consider before applying

It is essential to be well prepared before making a relocation application and to agree a strategy in advance. When considering the prospects of success, you will be asked about:

1. Reasons for wanting to relocate
2. Where you propose to live (including full information of the amenities and maps of the area including schools, facilities)
3. How the move is to be funded
4. Support network of friends and/or family members
5. Proposed employment and practical arrangements
6. Impact of changes in language and culture on the child
7. Proposed schools
8. Proposals for contact between the child and the other parent
9. Impact (emotionally, physically and financially) of a refusal to relocate

It is possible to oppose a relocation application on the basis that it is not in the best interests of the child(ren). It is also possible to ensure that, if permission is given, the best possible safeguards are in place to ensure that the relationship between the child(ren) and the ‘other’ parent is maintained. Mirror orders in the relevant jurisdictions may be required in the case of international relocation.

If you are considering relocating with your child or children, or you have been informed that your ex partner is considering doing so, it is important to get legal advice at an early stage. If you would like a preliminary conversation or some advice, please do not hesitate to get in touch with Hannah Petherick or Sarah Marchant who are specialists in this area.