Joanne Major, leading divorce and family law specialist and Principal at Major Family Law, the Divorce and Family Law Specialists, Ponteland, Newcastle upon Tyne comments in the Luxe Magazine in this age, social mobility is commonplace and what is known as global mobility is a feature of modern living. The decision to relocate with children can prove emotive and problematical when the parents are separated.

A High Court Judge said, “…the hardest decision that a judge ever has to make in the field of family law….is a relocation decision. The choices are starkly binary. One or other parent will lose and will be bitterly disappointed. There is no scope for finding some comfortable middle ground”.

So what are the rules for taking children abroad to live? The parent with whom the children live must obtain the consent of the other parent (unless the other parent is a father who does not have parental responsibility), and any other person with parental responsibility for any of the children before removing them from England & Wales to live.

If the other parent does not consent to their removal, the parent wishing to relocate must seek an Order from the Court allowing the relocation. In such circumstances, there is no presumption that the application will be granted, unlike the situation where a family wants to relocate to another area within England & Wales.

As with all children cases, the welfare of the child or children involved is the paramount consideration of the Court and case law has determined that a number of factors should be considered which include ascertaining whether the desire to relocate is genuine and founded on practical proposals that have been well researched. In other words, the parent wishing to relocate must show that practical arrangements have been investigated and dealt with, such as immigration and employment requirements, accommodation, schooling, and support networks for the family.

In addition, the Court has to consider the conflicting standpoints of the parents and balance the possible impact on the parent wishing to relocate if permission is refused – particularly bearing in mind the indirect effect this may have on the children – and whether the opposition of the other parent is motivated by genuine concern for the future of the child’s welfare, together with an assessment of the extent of the detriment to the relationship between that parent and the children if the move were granted.

Clearly, this aspect of the case is far more tricky than deciding whether proper preparations have been made towards any potential move.  Matters relating to the current frequency of contact between the non-resident parent and the children plus what arrangements are proposed for contact following the move are directly relevant.

The complexity of this kind of situation was highlighted in a case which has been before the Courts for some considerable time concerning a young child and her Swedish mother who wished to return to her home country after the breakdown of her relationship in this country with the child’s English father. Many accusations were made by the father against the mother, who in turn asserted that she was isolated and unhappy in England and would be able to provide a much better quality of life for her daughter in Sweden.

Faced with a very difficult decision, the Judge, and ultimately the Court of Appeal allowed the mother to move to Sweden and in doing so, indicated that the father was unable to separate his own needs and feelings from those of his daughter.

As with all decisions affecting children of the family, it is always preferable to try to reach agreement and/or compromise. For those contemplating a move abroad or facing the possibility of their children being taken abroad to live, early expert legal advice is essential.