We frequently advise clients who have been through/are going through a divorce or separation and need to decide what is best for their children moving forward with consideration being given to a move away from where the family home has been.

Due to the sometimes unknown distribution of family finances during a separation, it can be difficult to plan ahead for the children.

One of the key issues to consider when thinking about the future of your children is who they will be living with and where they will be living. It is often preferable, and indeed recommended that any children should share their time with both of their parents. However, it is common and to be expected that one party or both parties cannot enjoy the same standards of living post-separation or divorce as they did when with their former partner, as we are having to divide what was once, one pot into two.

In Children Act proceedings for child arrangements, parties can often dispute what is in the best interests of the child. For example, some parents may wish to move further away from the former family home than others perhaps to move closer to their family, which can create a difficult balancing act for children who still need to have a meaningful relationship with both parents. The Court will try to reduce the amount of disruption that is caused to a child’s life and frequent long-distance handovers can become a tiring and emotionally draining part of their upbringing, especially for younger children.

When making a decision about the children, the Court will always have regard to the welfare of the child above all other considerations. When considering a separation of joint finances, this may necessitate a sale of the former matrimonial home to provide adequate accommodation for both parties and most importantly, for the children which then may lead to consideration being given by one parent to move away from where they have lived to a different location.

Where, then, should you consider moving when you are the parent who the child lives with or spends time with?

Important things to consider

Firstly, it is important to note that the Court will take a dim view on any party who seeks to withhold contact as a punitive measure within relationship breakdown.

The Welfare Checklist, contained in the Children Act 1989, provides a useful insight into the court’s reasoning for trying to ensure that the child has contact with both parents. It looks to the objective needs of the children as opposed to the wishes and feelings of parents.

This can be an important and beneficial tool in Children Act proceedings, as the Court will highly regard those with what is termed as a ‘child-focused’ approach. You should therefore concentrate on what are the real benefits to a move away from the children’s home and why is such a move necessary.

Some things that you may want to consider when providing a submission to Court about where you would like to relocate are:

  1. The education standards within the catchment areas, which can be obtained through Estyn reports and compare these with the current school the children are in.
  2. The relevant crime statistics of the area. You can find the crime statistics for your local police district HERE.
  3. The proximity to the other party for the purposes of handovers, which is particularly relevant if the child is younger and if contact is regular and in equal share. If the distance is considerable, real thought must be given to how the children’s relationship will be maintained.
  4. The previous standard of living enjoyed by the child. The closer to you are able to achieve this, the better.
  5. Your child’s wishes and feelings, up to an extent, depending on the child’s age.

Example cases

The leading case for disputes relating to relocation is Payne v Payne [2001] EWCA Civ 166. In that case, the Mother wanted to relocate with the child to New Zealand, which the Father argued against, feeling that the connection that he would have with the child would suffer as a result, which was not in the best interests of the child. The Court found that the move was in the best interests of the child, as the impact on the child should the Mother have not been able to move to New Zealand, where she would have legitimate business prospects, would have been more adverse than if they were to move.

Whilst not everyone seeks to move with their child to the other side of the world, this case presents an important demonstration of the Court’s reasoning, and its essential criteria.

Defending against a move

It follows that any parent seeking to defend against a move should try to use the above considerations to prove why a move would not be in the child’s best interests, via a Prohibited Steps Order. An example case where a move was successfully defended is the High Court decision in CB v CB [2013] EWHC 2092, where the Father successfully withdrew his permission for his 14-year-old son to stay in Australia with the Mother, who was a dual British-Australian citizen. This had been done whilst the child was staying with the Father over the Christmas holidays in the UK.

The Court held in this case that the child’s early upbringing in England was far more important in the consideration of his best interests, which was bolstered by the wishes and feelings of the child to remain with the Father. A crucial difference between this case and Payne v Payne is the ages of the children, where the Court placed far more weight to the wishes and feelings of the child in CB v CB due to his increased emotional and mental capacity to make such a decision.

This outcome should be viewed with caution, however, as a child’s wishes and feelings will not always be determinative in a case, and due regard should be placed to all arguments which could be made against a move, in order to put forward a sound and holistic submission before the court.

Ultimately, the court has a wide discretion to determine what is or is not in the child’s best interests in cases of relocation and other forms of dispute resolution such as mediation, conciliation or arbitration should be considered before initiating proceedings for a Child Arrangements Order or a Prohibited Steps Order.

Whilst the Court appreciates that sometimes people wish to move away from a difficult break up, the Court will only look at this to an extent and it will not outweigh the Court’s duty to do what is best for the children and maintain the status quo, so any plan must demonstrate how that benefits the children.

T: 029 2034 2233
E: Enquiries@wendyhopkins.co.uk

Author: Owen Day

Published: 28.12.22