When relationships end it is often not straightforward to agree the arrangements for the children to continue to spend time with the non-resident parent.  This is certainly not a new concept, and there are no hard and fast rules as to how the arrangements should take place.  What works from one family may not work for the next, and the guiding principle of relocation child custody will be the welfare of the children, the court’s paramount consideration, and what is in their best interests.

Modern family – international relocation

For some families, separation is not just around the corner, or even in the next town or county, but instead to another country or even continent.  In modern times it is not unusual for the family make-up to be intercontinental and multicultural, and so when families separate, it is not uncommon for one parent to want to return to their country of birth, or look to relocate to another place, and so sometimes place thousands of miles between the two homes.

The court’s approach, as with all matters regarding children, is to encourage families to try to reach agreement, and an application to the court must be a last resort.  With such significant consequences, however, to a move to the other side of the world for families, it is important to consider this carefully and the legal options available.  In most situations the parents will share parental responsibility for the children, and so the agreement of the other will be essential before a move can take place.

Specific Issue Order

In default of agreement, an application would need to be made to the court and the proceedings for these, if contested, can often be quite protracted and convoluted.  An application would be made for a Specific Issue Order (or to try to prevent another from relocating without agreement, an application for a Prohibited Steps Order), when the court would consider a variety of factors including:

 

  • Scrutinising proposals so that the court is satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
  • The effect upon the applicant parent and the new family of the child of a refusal of leave, something which the court considers to be very important
  • The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
  • The opportunity for continuing contact between the child and the parent left behind may be very significant.

 

The welfare checklist

There have been a number of leading cases on the topic, notably Payne and MK v CK.  The court’s decision will hinge only upon the factors within s1(3) Children Act 1989, the “welfare checklist” and so in other words, whether or not the application succeeds will boil down to whether the child/ren’s welfare compels it to.

 

It is best to consider options early, and preparation is key.  Careful consideration will need to be given to how the relationship between the children and the non-resident parent will still be promoted, and it will be necessary to be creative as to methods of indirect contact, to include media such as Skype, FaceTime or similar video conferencing.

 

Ed is a family paralegal based in our Exeter office. For advice or assistance regarding family issues including international relocation please contact our family team.  We have nationally accredited and rated specialist lawyers and a wealth of experience in helping people – in particular experience in representing applicants, respondents and children who have been the subject of international relocation cases – and If you feel that we might be able to help, please contact us on 01392 210700 or email us at family.exeter@stephens-scown.co.uk.