During any separation or divorce, one of the primary concerns will be the impact on any children. It is unavoidable that change will occur in everybody’s lives, and there may be the time when you decide that a relocation is appropriate. Perhaps you will be unable to continue to afford to live in the area you currently do, or you want to relocate to be closer to family and friends that can provide you and your child with additional support. Whatever your reasons, it is important to obtain early legal advice on your options. Melissa Cunningham family law expert at IMD Solicitors explains what your initial considerations should be.
‘If you are thinking of relocating with your child, whether to another country or just another county, then it is important that you consider how your child will adapt to life in a new location.’
Melissa Cunningham
You need to think about what
GP and dentist they will register with, what clubs they may join, what hobbies
they can participate in, as well as where you will actually live and who will be
on hand to help out with any childcare that is needed. Give thought to what schools they can attend
and if a move now is likely to impact on their education or upcoming exams. If you are moving with a young child to a
non-English speaking country, your former partner may have real concerns that a
language barrier will develop with their child.
English lessons, or attendance at an international school may provide
reassurance on this aspect.
In addition to the above,
it is vitally important that you consider how your child will maintain their
relationship with your former partner. The court will
need to be assured that the intended move is not an attempt to exclude your
former partner from your child’s life.
A Contact Plan
You should have a plan for contact. If you intend moving far away, where regular direct
contact will not be practical, then it can be helpful to utilise modern
technology. Although no substitution for
face-to-face contact, the use of video calls can be a better way to maintain
regular indirect contact than just phone calls.
Picture messaging should also be considered as sending photographs of
the child or even photographs of their latest art homework can help your former
partner and child connect.
You will also need to look at the practicalities of how and
when direct face-to-face contact will occur.
It will be important for your child to physically spend time with their
other parent. You should factor the cost
and method of travel, how this will be paid for and who will be responsible for
accompanying your child (if needed). If
a direct train or flight route is available, it may mean contact can occur more
easily and at a lower cost. It is also
important to think about the actual venue of contact. If it is intended your former partner will
travel to your new location, then think about if there is adequate affordable
accommodation for them to stay while contact occurs.
After researching the above, if you decide that relocation
is still best then you should speak to your former partner and seek their consent
to the move. If they hold parental responsibility
and will not consent to your relocation plans, then you should speak to a
solicitor who can advise you if your former
partner holds parental responsibility as well as the appropriateness and
requirements for mediation in your circumstances.
Relocating Abroad
If you are relocating to outside the UK, known as external relocation, and your former partner does not consent, then you will be required to apply to the courts for a Specific Issue Order. Failing to do this can have very serious consequences and may even lead to a prosecution for child abduction.
If you are relocating within the UK, known as internal
relocation, your former partner can object to the move by applying to court for
a prohibited steps order. If granted,
this would prevent you from relocating. You can, of course, counter this with
your own application for a specific issue order.
In either the case of internal or external relocation, a specific issue order, if granted, will permit you to move. The law, in both internal and external relocations, requires that the court must place the welfare of the child as their paramount concern. Ms Cunningham advises ‘This is when your early research will pay off. The court will need to be sure that this move has been well thought out, is in the best interests of your child and that you have considered all aspects of how the relocation will impact on your child including your child’s contact with their other parent.’
It will also be relevant, although not decisive, for the
court to consider the impact on the child in a home with a parent who has been
forced into the unhappy situation of not living where they wish. Depending on
your child’s age, significant weight may also be attached to their own wishes
and feelings on the matter.
All cases will turn on their own specific facts. It is crucial to obtain early advice to avoid
last minute dashes to court, which could significantly delay or impact your
relocation plans.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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