Relocation of children from England to Scotland or Northern Ireland
By Fiona Wilson
Fiona Wilson looks at issues to consider when a client wishes to move children from England to Scotland or Northern Ireland.
This article will hopefully provide an overview of the issues one will need to consider if asked to advise on a proposed internal relocation away from England.
Moving children to Scotland or Northern Ireland is classified as an internal move within the UK, rather than an international relocation. While this definition includes most of the British Isles, such as the Isle of Wight, Anglesey and the Inner and Outer Hebrides, it does not cover the Channel Islands or the Isle of Man.
The main implication of a move to Scotland or Northern Ireland is this would be to a country with its own legal and education systems, which are different to that of England and Wales.
Obviously, as would be the case with an international relocation, there are few barriers to stop an adult relocating themselves to wherever they wish to live in the UK or elsewhere in the world. The legal issues arise only where there is also an intention to move minor children of the family.
There is no problem where the parents of children agree they can move elsewhere. It is for this reason I would always recommend parents to attend mediation where such a move is planned.
Many of the reasons for one parent opposing the move is they may be anxious about the impact of move on their relationship with the children, including how often they would be able to see each other and travel arrangements.
If these practical issues can be discussed with an experienced mediator, arrangements can often be agreed and the move can go ahead.
If a practioner is consulted by a parent in such a situation who wants to make the move, they would have to explain to them they must not remove the children unilaterally. While doing so within the UK’s individual countries may not be classified as a criminal offence, as it would if they were taken out of the UK, it is still not permissible to do so.
If there is any suggestion such a move is likely and the client is the parent opposed to the move, they should apply urgently for a prohibited steps order to hold the position until there is an overall decision made on the move for the longer term.
Where the client is the parent who wants to move, they should apply for a specific issues order under the Children Act 1989 (the Children Act) to be given the permission of the court to relocate. One should explain to their client the courts are unlikely to treat such applications as being urgent and they should therefore not expect to see the matter determined for at least several months (another good reason to go to mediation – arbitration is also an option to consider).
The applicant parent needs to present a well researched and thought through plan on such matters as where it would be proposed the children would be living. This would describe and give examples of the sort of accommodation that would be chosen as well as details of the costs involved and the location in relation to school and child care.
Education is obviously another key factor to consider. What schools are available in the chosen locality? Which is the preferred school and do they have a place to offer the children? What sort of reports and reputations do they have? If the school is a private one, what are the fees and how would they be met?
Child care also needs to have been thought-through and researched carefully so a cohesive plan including cost is set out about how this would work for school and during holidays.
Direct and indirect contact
The proposal should recognise the loss for both the children and the left behind parent and if it is not going to be possible for regular term time arrangements to be made, this needs to be factored in so the relationship between children and parent is maintained. Thus, indirect contact is going to be important too.
As travel is going to be necessary, this has to be investigated and a workable timetable needs to be set out with the costs of travel included along with an indication as to how such costs are to be met.
The whole proposal for the relocation and why it is going to meet the welfare test for the benefit of the children should be set out comprehensively so the opposing parent and court can see matters have carefully been planned and the move will have as little adverse impact as possible. The concerns of the left-behind parent should not be dismissed but listened to and work done to come up with a solution to them.
If the client would be the left-behind parent, it will obviously be hard for them to accept a move to a new home hundreds of miles away and even more complicated where there is a different education and legal system in place. This is relevant because if the move to Scotland or Northern Ireland is permitted, the children may become habitually resident there, meaning any further applications which need to be made will have to be made to the courts in Scotland or in Northern Ireland.
The left-behind parent should always check the proposals made by the departing parent to ensure they are accurate and workable. If not, it would be sensible for them to do their own research to come up with an alternative plan which could result in the children staying with them, if necessary.
The courts have made it clear applications for an internal relocation will be treated in the same way as a proposed international relocation [Re C (Internal Relocation) 2015 EWCA Civ 1305] and the usual statutory welfare checklist must be considered carefully. Effectively, the court will have to consider the interests of the children and the parents.
The left-behind parent should be confident the proposed move will not take place until plans are tested and approved by a court as being in the child’s best interests, if no agreement can be reached. So if they believe there is a real worry that there may be a unilateral move, they should apply for a prohibited steps order under the provisions of the Children Act.
If there has been a unilateral internal move without agreement or the court’s permission, this is not a criminal offence. However, the process of making applications for the return of a child under the Hague Convention does not apply as England and Scotland are not separate signatories to the treaty.
It is possible, though, to make applications to the court in England to seek to have the children returned and any order can and should be registered in Scotland so it can then be enforced by the Scottish courts. Applications made to the High Court can include applications for location and disclosure of information orders.
Fiona Wilson is the head of family at Goodman Derrick gdlaw.co.uk