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Thinking about relocating or travelling abroad with children after divorce?

View profile for Glynis Wainman
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Where do you live? What country? The questions seem to be fairly simple, and most people should be able answer without too much thought.

However, what if you were told that for the purpose of the Children Act 1989 you lived in England and Wales? That is the jurisdiction of the Court and that moving to any other jurisdiction, including Scotland, would amount to relocation? 

Glynis Wainman of Hancock Quins Solicitors in Watford explains that this has a particular importance where a child is born of parents, or has extended family, in several different countries or jurisdictions. At present if both parents have parental responsibility for a child then permission is needed to remove that child from the jurisdiction.

In the event of a dispute between parents, taking your child to Edinburgh, (even for the weekend) could require the consent of the other parent. But Cardiff and Cornwall will not.

In the absence of any court order the above is true. It is not necessary to panic on this point. If there is a refusal the court can allow the same. It would not be advisable for the non-resident parent to be unreasonable but details of travel and accommodation may be required.

With regard to permanent relocations, the law on international relocation applications was most helpfully summarised in 2001 in the case of Payne. The facts are not important, however the principle is particularly useful as the judge offered some clear guidance on the types of issues the court will look at. The case involved a mother trying to relocate but the same applies if the child lives with father, namely: 

‘(a) Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life. Then ask, is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b) If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.

The Court of Appeal dealt with this matter in a case which for confidentiality reasons is simply known as Re F (2015).  The Court of Appeal has decided that the Payne v Payne guidance should not to be elevated to ‘principle’. Payne v Payne does not set out a legal principle; it is guidance to assist in the welfare analysis which may or may not be of aid according to the facts of the particular case.

Of course a primary carer should not be allowed to relocate on a whim when it appears the sole intention is to frustrate contact. It is however a question of degree how far this will apply. If the parent is offered a significant change of life style and is still able to meet the child’s needs then this must be looked at.

The court must still balance the overall situation by assessing the impact, from a child-centred point of view, of moving and remaining. If the benefits outweigh the impact the court could still allow removal.

It is known that sensible and practical contact arrangements will give the court some belief that the relationship with the non-resident parent and that part of the extended family will be preserved and developed.

Planning to travel or relocate abroad? If there is or may be an issue of consent it would be sensible to check the situation well in advance. 

Still confused as to whether you are allowed to go? We offer an initial case assessment appointment to discuss all issues in relation to contact arrangements. Please do not hesitate to contact Glynis Wainman on 01923 650880 or gwainman@hancockquins.co.uk to discuss this.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.