INFORMATION SHEET - RELOCATION OF CHILD ABROAD
A child cannot be removed from the jurisdiction in which s(he) is habitually
resident (England) without the consent of every person with Parental
Responsibility.
Parental Responsibility is defined as “all the rights, duties, powers,
responsibilities and authority which by law a parent of a child has in relation to
the child and his/her property”.
If therefore both parents have Parental Responsibility for a child then one
parent may not take a child abroad to live without the consent of the other
parent or, failing that, without the permission of the Court. The onus is on the
person wishing to relocate abroad to make the application.
Guidance in Payne v Payne
Guidance about how the Court should approach cases where a parent wishes
to relocate with a child abroad was given in the case of Payne v Payne.
That guidance can be summarized as follows:
1.
The child’s best interests and welfare must always be the
paramount consideration;
2.
Whilst there is no presumption in favour of the parent wishing to
relocate, properly thought out and reasonable proposals made by
that parent will be given considerable weight by the Court. The
Court must initially explore whether the parent’s application is
genuine or whether it is motivated by something else e.g. a desire
to exclude the other parent from the child’s life. The Court must also
consider whether the parent’s proposals are practical and well
researched. If the relocating parent fails to satisfy the Court in either
regard, then it is likely that his/her application will fail.
3.
If the Court is satisfied that the relocating parent has complied with
the requirements of paragraph 2 above, it will move on to evaluate
whether or not the move is in the child’s best interests. When doing
so the Court will take into account a number of factors including:
a. The effect that a refusal of the application will have on
the relocating parent and the knock on effect this
could have on the child;
b. The impact that a significant reduction in the time the
child can spend with the other parent and his/her
extended family will have upon the child;
c. The opportunity for continuing contact between the
non relocating parent and the child. For example
whether the non relocating parent can afford to travel
to see the child and the likelihood of the relocating
parent adhering to any contact order made by the
Court if s(he) is given permission to relocate.
d. The Welfare Checklist set out in Section 1(3) Children
Act 1989:
I.
The child’s ascertainable wishes and feelings
(considered
in
light
of
his/her
age
and
understanding)
II.
His/her physical, emotional and educational
needs
III.
The likely effect of any change in his
circumstances
IV.
His
age,
sex,
background
and
any
characteristics of the child which the court
considers relevant
V.
Any harm which the child has suffered or is at
risk of suffering
VI.
How capable each of the parents, and any
other person in relation to whom the Court
considers the question to be relevant, are of
meeting the child’s needs
This is often a difficult balancing exercise for the Court to conduct, which
always makes it difficult to predict what might happen in relocation cases.
Judges also have a wide discretion in these cases.