We live near Saffron Walden. I’ve been divorced for a couple of years and the kids see their dad regularly as he lives close by. Now I’ve been offered a dream job in Newcastle and I really want to go. Of course, I want the children to come with me. I believe we would all have a better quality of life there, but it would mean they wouldn’t be able to spend as much time with their dad. Can we go?
That depends on whether the children’s father agrees to your move, or if you can persuade him to do so. If you cannot reach agreement, you are likely to have to persuade a court that the move you propose is in the children’s best interests.
What we’re discussing here is known legally as ‘internal relocation’ – that is, moving a family to a different part of England and Wales but not abroad away from the reach of the English courts. If you have managed to arrange the care of your children after divorce or separation without involving the courts, then technically you and the children who live with you can move wherever you like in England or Wales; but in reality, any change to the arrangements that you have had in the past may lead the other parent to make an application to the court for a child arrangements order that might stop you from going.
Therefore, your first move should usually be to seek to raise your potential move with the children’s other parent to help them understand why you want to move, and what benefits it would offer to the children. If you have a good relationship with your former partner, you could try to do this just between the two of you; you should make sure, of course, that the children are not around. It’s also often wise to have these sorts of discussions in a neutral place. You could try to write down in advance the main points you want to get across so you don’t get flustered, and be patient – don’t expect a response or agreement straight away. It might be sensible, however, to ask for a response within a couple of weeks so that you know what could happen next.
If you feel you might need a bit more support in your discussions, you could consider family mediation. Here, an impartial third-party mediator who is used to facilitating discussions between separated former couples could assist the two of you to talk about the proposals and what they would mean for the children and each of you as parents. Family mediation can be very successful in helping a family make practical plans that work, and avoiding the stress, delay and cost of court proceedings. There is a legal requirement for anyone who wants to apply for a court order about post-separation children issues to attend a meeting with a mediator to investigate whether the disagreement might be appropriate for mediation; however, the earlier in a dispute you can see a mediator, the better the chances tend to be of working through your difficulties in mediation and therefore avoiding court. If you can do this, your relationship as fellow parents of your children is likely to be more constructive in the future, and the children will benefit from that.
If talking doesn’t work or isn’t appropriate, you can ask a solicitor to negotiate for you with the other parent or their solicitor. This can be an effective way of raising and addressing specific concerns or considerations at arm’s length, and really getting to the bottom of what needs to be sorted out. If solicitors are unable to procure an agreement about what should happen next, the only option left is to ask the court to make a decision.
A recent case in the Court of Appeal has made it clear that in matters of the movement of children within England and Wales, the overriding consideration is what is in the children’s best interests. There are a number of factors that the court will consider in assessing this. The question of how it might affect you if you were not allowed to go, and how it might affect the children’s father if you were allowed to go, are not standalone issues but must be considered as they affect the children. If they are old enough and can understand enough about the issues involved, the children’s wishes and feelings may also be a major factor in the court’s assessment, although the court will not necessarily agree to do what they want.
The court will want carefully to consider a number of factors, including but not exclusively those set out in case law such as the (in)famous case of Payne, and all of which will need to show that you have sensible plans for things like housing, schooling, health, and contact with the children’s father. Fundamentally, they will be asking what is the right thing for the children. If you can show that it is better for them to go with you than whatever alternative plan is proposed by their other parent, the court is likely to support your plans to move. However, there are no guarantees: each family, and indeed each child, is individual, and decisions made by the courts in these cases are highly fact-specific.
If you have any questions relating to the movement of children to a different part of the country, or the world, or any other family law matter, please do give us a call on 01223 443333 and make an appointment to speak to Tricia, Adam, Sue, Gail or Simon.