If, as a separated parent, you wish to move abroad with your children, then you will need the consent of the other parent with parental responsibility. If the other parent does not consent, then an application must be made to the Court for permission to permanently remove the children from the jurisdiction of England and Wales.
The leading case on the subject of relocation until recently was Payne v Payne [2001] where the welfare of the child was the paramount consideration of the Court. In the case of Payne, the mother was the primary carer and had a residence order in her favour. The judgment laid down the guidance to be considered when dealing with such applications and one of the important factors was the effect and distress likely to be cause to the applicant parent and new family of the child if the Court refuses to grant permission.
However, this Spring the situation changed with the case of MK v CK (Relocation: Shared Care Arrangement) [2011] where the father successfully appealed the Court’s decision to grant permission to the mother to relocate to Canada with the parties’ two children. In this case the facts were as followed:
- The mother was Canadian and the father was Polish. They had met in Canada and moved to England. They married here in 2004 and had two girls, who at the time of the hearing were aged 4 and 18 months. The parents separated in July 2010 .
- A shared residence order was made in August 2010 under which they shared the care of their daughters. The children spent 5 nights (6 days) with their father and 9 nights with their mother in every 14 day period. Parental care was more or less equal (mother had the assistance of a nanny whereas the father did not).
- The mother applied for permission to relocate to Canada. She wanted to go home to enjoy the support of her family. The father took the view that such a move would seriously affect the children’s relationship with him and it would in essence be lost.
- The CAFCASS officer had described the case as ‘a fine and difficult balance’ but had recommended that the mother’s application be refused.
The father’s appeal was allowed. The Court agreed that the welfare of the child is the only real principle to be applied in a relocation cases and the checklist in Payne must only be taken as guidance. The Court made clear that the greater the part the non-applicant parent is playing in the children’s lives, the greater the damage potentially caused by the relocation.
Therefore, what does this mean for the parent wishing to relocate nowadays? The situation is unclear at the moment. In cases where the care arrangements are essentially shared it is likely the Court will follow the Re K guidance. However, where there is a clear primary carer, the Court may refer to the Payne guidance and use the welfare checklist as well as its own analysis of the mother’s assertion, that the effect of refusal would be devastating to decide.
In any event, when considering relocation of children, parents are strongly advised to seek legal advice as soon as possible. The solicitors in the Family Law Department at Rollingsons Solicitors Limited are specialists in advising on parental responsibility, shared residence and applications for permanent removal from the jurisdiction as well as in general children issues. If you wish to discuss your unique situation, then please call our Family Law Department on 0800 011 6432 or email law@rollingsons.co.uk.
