Relocation with Children

When Permission to Relocate Is Needed

GOV.UK says a major decision needs the agreement in writing of everyone who holds parental responsibility, and gives moving abroad with your children as the example. Where a child arrangements order regulating with whom or when the child is to live is in force, section 13 of the Children Act 1989 says the same: no person may remove the child from the UK without the written consent of every person with parental responsibility or the leave of the court.

The exception is narrow. A person named in that order as someone the child is to live with may take the child out of the UK for a period of less than one month, which GOV.UK calls 28 days, unless another court order says otherwise. Holidays and short trips sit on our page about taking a child abroad.

Taking or sending a child under 16 out of the United Kingdom without the appropriate consent, or without the court's leave, is an offence under section 1 of the Child Abduction Act 1984 where the person taking or sending the child is connected with the child, which includes a parent. Section 1 provides limited defences, for example a belief that the other person consented or would consent, and the defence that consent was unreasonably refused is not open where the removal would breach a court order or where the refusing person is named in a child arrangements order as a person the child is to live with, is a special guardian of the child or has custody of the child.

A move inside the United Kingdom works differently. Section 13 catches only removal from the United Kingdom, so a move to Scotland or Northern Ireland does not need leave under it, and usually nothing stops a parent choosing where in the country to live unless an existing order restricts it. Take advice even so: a move that makes an existing child arrangements order unworkable can draw a prohibited steps order or an enforcement application. The other parent can still ask the court to decide, and the Court of Appeal has held the welfare test is the same as for a move abroad, with no requirement that the case be exceptional.

The Test the Court Applies

There is no presumption for or against a move. Under section 1 of the Children Act 1989 the child's welfare is the court's paramount consideration, and the court is guided by the welfare checklist in section 1(3): the child's wishes and feelings, their needs, the effect of any change, background and characteristics, harm suffered or risked, each parent's capability and the court's powers. On an application for the court's leave under section 13 that checklist is not a required part of the analysis, but the Court of Appeal has commended its use as a helpful aide memoire.

On an opposed application for a section 8 order, section 1(2A) presumes that a parent's involvement in the child's life furthers that child's welfare unless the contrary is shown. Under section 1(6) it applies only to a parent who can be involved in a way that does not put the child at risk of harm, and it falls away where there is evidence before the court suggesting that involvement would put the child at risk of harm whatever form it took. Involvement means involvement of some kind, direct or indirect, not any particular division of the child's time. On a section 13 leave application the presumption is not directly applicable either, though the Court of Appeal has said it heightens the court's scrutiny of the arrangements each parent proposes.

The factors listed in older decisions such as Payne v Payne are not a test: the Court of Appeal has confirmed that the only principle to take from that case is the paramountcy of welfare, the rest being guidance on factors to be weighed. Each realistic option is analysed on its own merits and the options are then compared side by side in one global evaluation, which in an international case may also call for a proportionality assessment because of the effect on the child's relationship with the parent who stays.

Evidence and Common Problems

These cases turn on detail, because the court compares two plans rather than two opinions. The material usually covers:

• the home and area, with evidence it is available
• the school, named, with a place applied for or offered, and the language it teaches in
• work, income and how the household will be paid for
• healthcare, and any additional needs the child has
• family, friends or other support in the new place
• the child's right to enter and live in the country
• the cost and length of the journey each way

The problems we see most often are a plan built on hope rather than documents, a contact proposal that ignores cost and distance, and a parent who leaves with the child and asks permission afterwards. Section 1(2) says delay in determining the question is likely to prejudice the child's welfare.

Where there are allegations of harm, the court may have to decide the facts first, at a fact finding hearing. Where a move brings a child to the UK rather than takes one away, immigration permission is a separate question covered by our child visa page.

How the Relocation Process Works

Where consent is refused, the application follows the Child Arrangements Programme in Practice Direction 12B outside the Child Focused Courts areas. Practice Direction 36Z replaces it at the court locations that it lists, which the judiciary describes as all of Wales, West Yorkshire, Birmingham and the West Midlands, and Hampshire and the Isle of Wight: there the court orders a Child Impact Report instead of a safeguarding letter and there is no first hearing dispute resolution appointment, so ask your solicitor or the court office which programme your case falls under.

1. Try to agree first. Unless an exemption applies you must attend a Mediation Information and Assessment Meeting before applying; GOV.UK lists the exemptions, which include evidence of domestic abuse and urgency.
2. Apply, usually on form C100, for leave to remove the child from the UK, for a specific issue order, or for a child arrangements order. GOV.UK explains how to apply for a court order; the fee is on the court and tribunal fees page and help paying court fees may be available.
3. Safeguarding checks. Cafcass carries out safeguarding enquiries before the first hearing and reports any safety issues to the court in a safeguarding letter. Practice Direction 12B says that on an application for a child arrangements order those enquiries include seeking information from local authorities and police checks on the parties, and that on other applications made on form C100 Cafcass screens the case and carries out those checks where the officer judges them necessary. Cafcass will, if possible, speak to each parent by telephone first.
4. First hearing. At the first hearing dispute resolution appointment the judge and the Cafcass officer look at what can be agreed and what must be decided, and give directions.
5. Evidence. The court sets a timetable under section 11(1) with a view to deciding without delay, usually orders a statement from each parent, and often asks for a welfare report under section 7.
6. Final hearing. Each parent gives evidence and is questioned, the welfare report is considered, and the judge carries out the welfare evaluation.
7. The order. Where the court makes a child arrangements order that regulates where the child lives, it may grant that leave generally or for specified purposes under section 13(3), and under section 11(7) it can add conditions, for example about contact, travel and keeping the other parent informed.

If You Think a Move Is Already Planned

If you believe a child may be taken out of the UK without your consent, you can ask the court urgently for a prohibited steps order, without notice to the other parent in a real emergency. Contact the police at the same time: GOV.UK says to do that where a child is at risk of being taken out of the UK without consent. If you or a child are in immediate danger, call 999; the National Domestic Abuse Helpline is 0808 2000 247.

Where the arrangements in place are no longer being followed, the routes are to enforce a child arrangements order or to vary an existing order. Where a child has already been taken abroad, or proceedings are running in another country, our international family law pages cover that, and our page on international child relocation goes further into the destination country's law, jurisdiction and recognition of an English order.

When Legal Advice Is Especially Important

Advice early makes the most difference when a job offer or a school year fixes the timing, when there is a dispute about whether consent was given, when the destination has no straightforward way of giving effect to an English order, and when the child is old enough to hold a firm view.

It matters too where there has been domestic abuse, because the court has to consider harm and risk at every stage. Those cases are covered on our page about domestic abuse and child arrangements.

How RakLAW Solicitors Can Help

Where a move is proposed, we build the plan and the contact proposals, test them against the welfare checklist and put the application before the court. Where a move is opposed, we set out what the child stands to lose and a realistic alternative to compare it against.

RakLAW Solicitors, founded by solicitor Rakesh Prajapati and regulated by the Solicitors Regulation Authority, is at 42 Shad Thames, London SE1 2YD, a short walk from Tower Bridge in Southwark. We offer a free 15-minute consultation, our family law fees page explains how we charge, and we are privately funded and do not offer legal aid. Call 0203 345 2000, book an appointment, or start with our children matters hub.