In this day and age, with the ease of flying from one country to another in a matter of hours, with long distance relationships and inter-racial marriages becoming much more common, the breakdown of a relationship can be even more complex.
In the past, the main area of contention when it came to children was how often a non-resident parent would get to see the child. Now, even if arrangements for contact or shared care are in place, they could always be subject to a drastic change, namely, the possibility of one parent (usually the main carer) moving to another country.
The non-resident parent who previously had contact with their child every week is suddenly faced with the possibility of only seeing them during school holidays and the odd long weekend. This is in addition to the extra costs of having to travel to and from the primary carer’s new home thousands of miles away.
One must remember that if both parents hold parental responsibility, then a parent cannot remove a child from the UK without the other parent’s consent. To do so would be considered ‘wrongful’ and therefore the staying parent could bring an application against the leaving parent for Child Abduction. This area of law is extremely complex.
If a parent wants to live in another country with the child and the staying parent does not provide his/her consent, then an application to Court will need to be made. There is a leading case on these types of cases called Payne v Payne and this case sets out criteria which the Court must consider when deciding whether the leaving parent and the child can live overseas. Whilst there is no presumption in favour of the leaving party, Payne v Payne also gives weight to any distress caused to the leaving parent if they do not get permission to live overseas.
The onus is however, placed upon the leaving parent to provide clear evidence that his/her application to live abroad is a genuine one and that they have considered all aspects of life in that country. Clear and practical proposals must also be set out for contact between the child and the staying parent. Any applications to relocate, either overseas or within the UK that are solely to frustrate the relationship between a child and his/her parent will not be entertained by the Court and there are many cases that demonstrate this.
The criteria of Payne v Payne is now slowly being changed and attempts have been made to disregard the guidance set out in this case.
The above is different to a parent who wants to live elsewhere within the UK with their child. The criteria to relocate internally within the UK are less stringent than the criteria required to relocate overseas. This being said, there is far less guidance and even more inconsistency with decisions regarding parents and internal relocation. There is however a presumption that a parent with residence of a children should not be restricted from moving around within the UK unless it is against the welfare of the children to do so.
The general principle to all relocations, whether internally or overseas is that each case turns on its own facts and circumstances and the Court must have first regard to the welfare of the children. It seems that in times where more and more parents are relocating, there is even more uncertainty as to what decisions the Court will make. It is therefore now particularly vital for parents who are considering moving or for parents who are opposing a move to get clear and concise legal advice that is specific to their circumstances.