The legal considerations in England and Wales
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If the latest headlines are to be believed, Sophie and Joe have managed to reach an interim agreement on the arrangements for the children, but the long-term arrangements remain up in the air. Whilst it is hoped they will be able to resolve this matter out of the court, via forms of alternative dispute resolution or directly between themselves, we explore below the challenges that parents face when seeking to relocate with a child in England and Wales.

When a couple have children together, they are bound to that child and each other by what is referred to as shared ‘parental responsibility’. This parental responsibility is essentially what it says on the tin; it is a parent’s legal rights and duties relating to their child which remains in place even after a couple separates.

This shared parental responsibility means that when a couple separate and one parent wishes to relocate with the child(ren) externally (outside of England and Wales), they require the other parent’s consent to do so.

When parents disagree
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In most cases, it is hoped that the parents would be able to discuss this directly and reach an agreement. If this is not the case, and one parent does not consent, the only recourse available to a parent is to make an application for ‘leave to remove’ under the Children Act 1989 through the family court.

Leave to remove applications are notoriously difficult and successful applications are not common. They require careful planning and strategy and compelling evidence. Making an application to remove a child from their settled home, perhaps their school, proximity to friends and family, and crucially, their other parent, is not a decision judges take lightly. Setting out such a case for why the move would be in the child(ren)’s best interest is fundamental and not straightforward.

What the court considers
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The primary factors the family court considers is the welfare of any child; this is the paramount consideration. The other considerations include:

1. Whether the leaving parent’s application is genuine, and not intended to exclude the other parent from the children.

2. Whether the leaving parent’s application is practical. For example, have they researched and planned how the move will work in practice (i.e. school, childcare, employment considerations, etc.), most importantly, how the children would spend time with the “left behind” parent, has this been considered carefully.

3. Whether the parent opposing the application is genuine in their opposition.

4. Consideration of the detriment to the remaining parent in relation to his or her future relationship with the child(ren) if the application was successful and permission granted.  

5. To what extent is the detriment to the remaining parent offset against the child(ren)’s potential relationship in a new home.

6. The impact on the leaving parent if their application for leave to remove was unsuccessful.

The above factors are not exhaustive and there is a lot for the family court to consider.

Each case of course must be considered on its own circumstances and merits. If any of the matters discussed in this insight are relevant to you, whichever side of the relocation you may be on, please do not hesitate to reach out to one of our specialist team. We are specialists in this area and can provide you with the advice and support needed.

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For any query or further information on the matters covered in this insight, please contact family@sheridans.co.uk.