Navigating relocation cases in family law: key considerations and best practice
Insight

Relocation cases are one of the rarer breeds in family law in that the outcome is binary. The children either relocate or they do not. They are, understandably, often the most emotive of cases for clients.
This column addresses some of the main areas to consider when instructed by a client who wishes to relocate with children, or by a client who is opposed to such a move taking place.
What is the legal position?
This will depend on what orders (if any) are in place in relation to the child, and where the relocating parent wishes to go.
International relocation
Where there is a “lives with” child arrangements order in force, a parent may not remove his or her child from the United Kingdom without the written permission of each and every person with parental responsibility for the child or the leave of the court, with the exception that the person named in the order can remove the child for a duration of time less than a month (s 13(2), Children Act).
If there is no “lives with” child arrangements order in force, although the Children Act does not require written permission before a child is removed from the UK, failure to seek such consent could result in the commission of the criminal offence of child abduction (even in circumstances where the left behind parent does not have parental responsibility). In practice, therefore, a parent wishing to relocate will require the written permission of the other parent or leave of the court.
Relocation within the UK
Technically, there is no legal requirement for permission to relocate when the planned relocation is within the UK (subject to any court orders that might be in place). However, a parent wishing to relocate within the UK may well be faced with (i) a request for an undertaking that they will not do so pending an agreement or a court order, (ii) an application for a prohibited steps order (“PSO”) by the parent seeking to prevent the move or (iii) a specific issue order (“SIO”), for example that the child continue to be educated at a particular school, which would have the effect of thwarting a move pending agreement or the ultimate decision of the court regarding the child's arrangements. In these circumstances the burden is on the “left behind” parent to justify the need for the PSO or SIO.
Separate representation for children
Making a child or children party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases. However, under r 16.2 of the Family Procedure Rules (“FPR”) 2010, the court can make a child a party to proceedings if it considers it in the best interests of the child to do so. Some examples of the circumstances in which the court may make a child a party are set out in PD 16A of the FPR and include, for example:
- where an older child is opposing a proposed course of action or
- where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court,
both of which may be relevant in a relocation case.
If a child is made a party to the proceedings under r 16.2, r 16.4 of the FPR provides that the court must appoint a children's guardian for the child.
The law
This area of the law has developed significantly in recent years.
The overriding principle is that the welfare of the child is the paramount consideration. The court must consider the welfare checklist and undertake a global holistic evaluation. Where there is more than one proposal before the court, each one must be analysed and considered on its own merits. This prevents one option (often in a relocation case the proposals from the absent or left-behind parent) from being side-lined. It is often most helpful to consider the options side by side in a comparative evaluation.
a. Evidence from Cafcass/independent social worker
The child's wishes and feelings are usually ascertained by a Cafcass officer and presented to the court in the Cafcass officer's report. In some cases, an independent social worker is appointed to ascertain the child's wishes and feelings or undertake a welfare analysis instead of a Cafcass officer.
The older the children, and the greater the level of their maturity and intelligence, the more weight will be given by the court to their wishes and feelings.
b. Statements
Each parent will provide at least one (sometimes two) statements setting out their position. Consider whether any other witnesses will be helpful.
The court will wish to consider the welfare checklist and so the evidence must address this. In addition, a Judge may well find helpful some or all of the considerations referred to in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.
The statements should therefore deal with:
- The child's physical, emotional and educational needs – consider the child's age, the relationship with each parent, siblings, friends, family etc.
- The likely effect on the child of any change of circumstance – the parent seeking the change must show that such a change is in the child's interests.
- Any harm which the child has suffered or is at risk of suffering. This can include harm from the primary carer being unhappy, harm from severance of the relationship with the left behind parent or harm from the loss of their life here.
- How capable each of the child's parents (or any other person the court considers relevant) is of meeting his or her needs.
- Is the motivation to move genuine?
- Demonstrating that there are practical proposals that are well researched and investigated – the devil is in the detail (practise the alleged travel arrangements, try out and time the proposed new school run at the right time of day etc.).
- Is the opposition to the move motivated by genuine concern? What is the detriment to the non-resident parent and can it be offset?
- What would be the impact of refusal on the parent wishing to relocate?
- To what extent can contact continue and what would be the impact of the reduction in contact with the left behind parent? Can the parent seeking to move be trusted to promote the relationship with the other parent – has history demonstrated this? What is the quality of the contact? How will it work in practice given the ages and stages of the children?
- Could the left behind parent also move? What connections, if any, does the other parent have with the new area? How easy or difficult would it be to establish some? Is there a language barrier? Are there any visa/ immigration requirements? Could the other parent work (if they intend to do so)? What would be the impact on the other parent of separation from his home environment?
How will any orders be enforced if permission is granted and the move takes place?
1996 Hague Convention countries
Under the Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children (1996 Hague Convention), orders made in one state must be recognised and either declared enforceable or registered for enforcement in any other contracting state at the request of any interested party. There is no standard procedure for this to happen, but where an order is intended from the outset to be recognised in another 1996 Hague Convention state, a recital on the face of the order to that effect is advisable. Once recognised in the new state, the original decision must be enforced in the same way as if it were a validly-made domestic order.There is also scope under Art 24 for the advance recognition of orders, allowing another contracting state to confirm in advance of a child being habitually resident there that it will accept an order made in the originating state. It is therefore advisable to pursue this opportunity in advance of any order being made in order to provide reassurance that the order will be recognised and enforceable.
Non 1996 Hague Convention countries
It is important to take advice from the jurisdiction the parent is intending to move to well in advance of your final hearing to understand the position regarding enforcement. Will an English order be recognised in the new jurisdiction? How could it be enforced? Could you obtain a mirror order in the new jurisdiction? Do you need to ensure that certain wording is contained in the English order for this to be done? Take advice on any draft order to ensure it is worded appropriately for these purposes.
Consider alternative methods of resolving the dispute
Although relocation disputes can be difficult to compromise, do not assume that simply because it is a binary issue, mediation will not be of assistance. Mediation may assist parents in agreeing a more creative solution than would likely be imposed on them by the court process, and help them avoid the full court process which can be very expensive and emotionally damaging for all. It may well flush out ancillary or underlying issues which can be resolved, or explore potential compromises, or at least aid each parent to understand the other's motivation and position. Anything that can be done to maintain a good co-parenting relationship whether the children move or not is of course of value. Where the children are 10 or over, child-inclusive mediation may be a helpful way to provide the children with a forum to talk about their wishes or concerns.
The arbitration scheme for private law cases was launched in July 2016 and included relocation cases within the UK. Although initially international relocation cases were not within the scope of the scheme, in April 2020 it was broadened to include international cases where the proposed destination state has acceded to the 1980 Hague Convention on Civil Aspects of International Child Abduction. Arbitration is therefore now available for a large number of relocation cases, and has some clear advantages. In particular, the process is much quicker, which can be particularly important in a relocation case where it may be important that the matter is resolved by a particular point, for example, before the end of the child's school year.
Wrongful removal
If the parent wishing to relocate does so without the other parent's permission, the “left behind” parent can seek the return of a child or children, but the application must be made urgently and as soon as the parent realises the child or children have moved.Sometimes parents simply cannot agree what is best for their children. Such is life. We as practitioners owe our clients a duty to handle relocation cases as respectfully and sensitively as possible. Being separated or divorced as parents does not mean, especially from a child's point of view, that you are no longer a family. We might be indirectly involved in these children's lives for a matter of months, or perhaps even a year or two, but when the case finishes, no matter what the outcome, the parents have to be able to co-parent successfully. We as practitioners should remind ourselves of that at every stage.
Please note this content was originally published in the Family Law Journal. December 2024 edition, best practice section.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, January 2025