Relocating children overseas – a new way of thinking?

Relocating children from the UK on a long term basis is one of the most challenging issues the family courts might consider. On such a topic, the stakes cannot be higher, as the courts have little scope for a compromised decision – the application is either granted or refused, the children either go or stay. The potential impact of such decisions on a family unit and on relationships with wider family members can be hugely significant. As ever, the courts’ paramount concern is the welfare of the children in question. The courts will consider the welfare checklist in assessing whether the move overseas is in the children’s best interests.

Nobody has the authority to relocate overseas from the UK with a child, if a residence child arrangement order (CAO) is in place, without the written authority of all other parental responsibility holders or authority from the court. This does not prevent the removal of a child overseas for a period of less than a month, by the person in whose favour the residence CAO is made.

If a party has parental responsibility, but is not named as a person with whom the child is to live in a CAO and removes the child without the consent or permission above, that would be a wrongful removal. The remaining party with parental responsibility could bring an application for the return of the child under the Hague Convention.

The most recent generation of children have had their cases considered in light of the leading case of Payne. In this case, the child’s mother wished to return to New Zealand, following the breakdown of her relationship with the child’s father. The mother was named as the resident parent in a CAO, that afforded the father approximately 40% of contact time with the child. The mother was eventually entitled to relocate to New Zealand with the child, as the court felt that the impact upon the mother of forcing her to remain in the UK may impact negatively on the child.

Subsequent case law over the last 15 years has seen the courts attempt to adopt a more holistic approach to considering the overseas movement of children. This requires a welfare analysis of all the options before the court. Considering each individual option on its merits prevents the remaining parent’s proposals being sidelined. The global comparative analysis is also necessary because a proposal that has some but no particular merit, may still be better than the only alternative, which might be considered worse.

The court now accepts that the correct approach is that the only principle that these cases should be decided on, is in accordance with the welfare of the child, considered by assessment of the welfare checklist. Each case will be decided on its own facts, using a holistic welfare evaluation to determine where the child’s best interests lie. The court will resist lazy attempts to categorise a case on the basis of the time a child spends with a particular parent, or the label applied to the day-to-day care arrangements such as residence.

Contact our specialist solicitors today on 01234 889777, to take advantage of our free consultation service, if you wish to discuss family matters relating to you and your children. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters.


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