May 9, 2011

Relocation, Relocation – Moving Children After Divorce or Separation

Wanting to start a new life after a separation is an understandable goal for those involved. Usually, though, this includes children, whose interests may not be best served by the new arrangements.

When parents separate, the question of contact with children is always difficult. If one of the parents wishes to start afresh in a new county, country or even on a new continent, aiming to take their children with them, the effect on contact with the children for the non-resident parent can be huge.

Judges have a significant degree of discretion when deciding whether to approve or reject a parent’s application to relocate children after separation. Where such a move would impact the children and their relationship with the non-resident parent – usually the father – judges are required by The Children Act, 1989, to give particular consideration to a number of factors concerning the children’s welfare.

In all such cases the children’s welfare is paramount. The judge will take into account the wishes and feelings of the children being relocated, as well as their physical, emotional and educational needs. The judge will also consider any other potential effects of the change in circumstances.

In addition, the judge must consider the ability of the relocating parent to meet the continuing needs of the children. When reaching a decision, a judge must also address any other relevant characteristics, such as whether the children have special needs.

In one recent case – Re F (internal relocation) (2010) – a mother of four children, who had separated from their father, applied to court to relocate to the Orkney Islands. The Judge rejected the application after weight was given to the wishes and feelings of the children, particularly the two eldest children who did not want to move.

Also important in this case was the fact the second eldest child suffered from dyspraxia and was also mildly autistic. The judge gave these characteristics – which can cause significant learning difficulties – added weight when considering the impact of the relocation and separation from the children’s father, whom they currently saw on a regular basis.

The mother submitted a contact schedule for the father to see his children, but this would have required them to travel long distances and see their father far less frequently. Ultimately, the judge did not believe this would be in the best interests of the children.

Although judges have significant discretion, cases are often highly dependent on the specific facts. It is common to have to resolve a very complex situation, occasionally leading to seemingly contradictory decisions.

In one recent example - LSA v RBS (2011) – the Court of Appeal overturned a decision allowing a father to relocate his two children to Canada; this would have separated them from their mother in Britain.

The Court decided that the children, aged 12 and 16, had different wishes and welfare needs and their relocation should therefore be considered separately. The father was only allowed to relocate the elder child, as the younger child was still heavily reliant on the mother. This decision, allowing parents to separate siblings, highlights a very real risk for those separated partners looking to relocate multiple children against their ex‑partner’s wishes.

As with all child-related family law matters, reaching agreement with an ex-partner over what is best for children can be a lengthy and difficult process. The legal advice and support of an experienced family law solicitor can ensure your, and your children’s, interests are protected, both now and in the future. 

Click for information on Holmes & Hills Solicitors' Children Law services, provided by Holmes & Hills' Family Law solicitors.

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