19 January 2016

Before you go….


Jemma Thomas
Professional support lawyer | UK

The freedom to choose where you want to live is something that most people take for granted. When deciding where to live there are various considerations to take into account, and when children are involved it is even more complicated: will they cope well with a move, will they miss friends and family, what schools and opportunities will be available to them?  These decisions are made far harder if parents are separated and do not agree on whether the move is in the child's best interests. In those circumstances, suddenly the freedom to move may be in jeopardy. There are different applications that can be made to the court in the event that parents do not agree about the move: Application for leave to remove: If there is a child arrangements order in place (concerning with whom the child lives), and the parent wants to move outside the UK (for longer than a month), then in the absence of the other parent's consent, they will need the court's permission under s13 of the Children Act 1989. Specific issue/prohibitive steps: Regardless of whether there is a child arrangements order in place, if the move is within the UK it is not necessary to have the court's permission to move. However, if you were considering moving far enough away that it would impact on the child's time with the other parent, you would be advised to seek their permission, and if not the court's (a specific issue order). The other parent could in any event make an application to prevent the move (a prohibitive steps order). To move without the other parent's permission would be extremely unwise. There is a statutory presumption that involvement of both parents in a child's life will further their welfare. If the move is outside the UK and there is not a child arrangements order (which is the case where separated parents have made their own arrangements without recourse to the courts, or where the court has decided that in their particular circumstances it would be better for the child not to make a court order) then you would apply for the court's permission to move (specific issue order). Conditions on residence: If there is already a court application in relation to with whom the child is going to live, one parent could then apply to have a condition attached to that order (under s11) to restrict where that parent can live with the child. The recent Court of Appeal decision in Re C [2015] EWCA 1305 has provided useful guidance and clarification as to what the court will consider when making any of the above orders, which could potentially restrict where one parent is allowed to live with the child. The Court made plain that there is only one authentic principle running through all these cases and that is that the welfare of the child is paramount. Historically there has been some doubt as to whether the court should adopt a different approach when the parent wants to move within the UK rather than abroad, and that a parent should only be denied permission to move somewhere else within the UK in exceptional circumstances. Although in Re C neither parent argued that the mother's application to move to Cumbria with the child should only be denied in exceptional circumstances, the Court of Appeal confirmed that such an argument would not have been successful. There should not be additional gloss, rules, presumptions or exceptions when it comes to making decisions in relation to whether the parent is able to move with the child. Each case should be decided on its own facts in accordance with the welfare of the child. The amount of time the child spends with each parent, whether there is a shared care arrangement, whether the parent wants to move within the UK, within Europe or anywhere in the world, are all relevant factors but they are not determinative of the court's approach to the case. The Court of Appeal considered the fact that whatever the outcome, leave to remove cases will likely involve an infringement on the party's Article 8 rights (the right to respect for family life). The Court must therefore consider whether any infringement of Article 8 is proportionate. The Court of Appeal found that their approach was in line with what the European Court of Human Rights would expect – the interests of the parents are not ignored but, if it is not possible to accommodate everyone's wishes, the best interests of the child dictate the outcome. In Re C the mother wanted to move with their 10 year old daughter to from London to Cumbria. The father objected to the move — when living in London his daughter was able to spend 2 nights a week with him, in addition to alternate weekends, but that would not be possible if she were in Cumbria. The Court welfare officer agreed with him that, although finely balanced, it was in his daughter's best interests to remain in London. The judge, however, disagreed and gave the mother permission to move. He said the daughter had a good close relationship with her father, but rather than this leading to an embargo on the mother's move, he thought the relationship sufficiently well established to withstand the move without deleterious effect. Provision was made in the order for the daughter to continue to have staying contact with the father if he were to be in Cumbria. The father felt so strongly that his decision was wrong that he appealed to the Court of Appeal. The Court of Appeal upheld the decision and allowed the mother to make the move -nearly 2 years after her initial application. It must be right that the court determines every case involving children with one principle firmly in mind: what is best for the child. There should not be any presumptions. It has always seemed anomalous that it should be easier to obtain permission to move within the UK — a move from John O'Groats to Land's End is surely as disruptive as a move from London to Dublin. As with any decision in relation to children it is better for all concerned if parents can reach agreement. In the absence of agreement, it is good to know that the court will remain focussed on what is best for the child. So, before you go….think what is best for the children, try to reach an agreement with the other parent, and if not make an application to the court.

Jemma Thomas Professional support lawyer | London

Category: Blog