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Jean-Yves Gilg

Editor, Solicitors Journal

Relocation, relocation

Relocation, relocation


Elizabeth Fletcher considers whether more parents will want to return home to the EU in light of Brexit and where the law stands on relocation applications

With the immigration status of EU citizens living in the UK uncertain following the referendum last year, it is possible that there may be a rise in relocation applications by parents seeking to remove their children permanently to other European countries.

The starting point is that if you want to permanently relocate to another jurisdiction with your child then you require the written consent of the other parent or an order of the court.

If the other parent will not consent and a court application is required, then the court will consider the matter under the Children Act 1989, and, as always, the welfare of the child is the court’s primary concern.

These applications are finely balanced, and as the court is given a binary choice to favour one parent’s request, emotions can run high. The parent to be left behind fears the reduced or lost relationship with their child while the leaving parent is searching for a new life or often to return home to their country of origin where family and friends are there to support them.Since 2001, the courts have relied upon Payne v Payne [2001] EWCA Civ 166, which set out the considerations needed to be taken into account when making a decision. There has been much case law since, but the latest and most significant is Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882. The Court of Appeal has set out a comprehensive overview of Payne as well as the other recent cases of K v K (Children: permanent removal from Jurisdiction) [2011] EWCA Civ 793 and Re F (A Child) (Relocation) [2012] EWCA Civ 1364. In summary, the welfare of the child is paramount. In search of what the welfare of the child is, the court will take into account the Payne guidance:

  • The applicant’s motivation for wanting to take the child abroad;

  • The other parent’s motivation in opposing the application and the impact of the move on their relationship with the child; and

  • The impact on the applicant of the refusal of a realistic proposal.

Overall, the court must make a ‘global holistic evaluation’, and a welfare analysis requires each realistic option for the child being considered on its own internal merits and then each option being considered in a side-by-side evaluation.

Article 6 and 8 rights are engaged in the consideration of these applications.

Lord Justice McFarlane stated particularly that ‘the overall balancing exercise is “holistic” in that it requires the court to look at the factors relating to a child’s welfare as a whole; as opposed to a “linear” approach which only considers individual components in isolation’. This in fact makes these applications even more finely balanced, as a linear approach simply means that a parent seeking to remove a child needs to jump certain hurdles to succeed, while a holistic approach will consider all aspects in the round.

When preparing such an application, the key to success is to set out:

  • The reasons for wanting to relocate;

  • Where the applicant intends to live;

  • What the arrangements for the child seeing the other parent will be;

  • Where the child will go to school;

  • Information about the local area and amenities;

  • What support network the applicant will have in the new location;

  • Full details of the applicant’s potential employment and to what extent that is finalised;

  • The impact on the children of changes in language and culture;

  • How the move is to be funded; and

  • The effect on the applicant of not being allowed to move.

This list is not exhaustive.

The court process itself usually consists of a maximum of three hearings, and in the final hearing the parties will give evidence. A welfare report will be prepared by either CAFCASS or an independent social worker, and the judge will of course consider all of this evidence when weighing up the options as set out above.

Clearly, to apply for or to resist such an application is very hard for a parent but it is likely that we may see more of these applications, both in light of the political changes in this jurisdiction as well as the globalised society we live in.

Elizabeth Fletcher is a director at Family Law in Partnership