Relocating - external

[Mummyalone1]

Anyone advise of their external relocation with children following a divorce where there has been DA. The Courts apparently don't want you to say it's to get away from the perpetrator (!) But needs to be in the children's Best Interests.. How common is it, what are CAFCASS like ? And do they care about the mother, primary care givers happiness and emotional well-being?

You'll need legal advice on this - it can get complicated. But the short answer is that, no - the family court will not make a decision based on what is best for you. They'll make a decision based on what is best for the children. The factors they take into account when deciding what is in the children's best interests are set out in the 'welfare checklist' within the Children Act 1989. There are seven criteria, and you can find them with a quick google.

The nature and severity of the domestic abuse may be a factor when the courts make their decision - is the other parent a risk to the children? If they're not perceived to be a risk, or if the risk is not perceived to be significant, you may well have an uphill battle when arguing for a move that woukd seriously damage the children's relationship with their other parent (while also uprooting them from their current lives). Courts put a lot of weight on trying to maintain a relationship between children and both parents, unless there's a really good (child-centric) reason not to.

Thank you for the reply. The domestic abuse was not directed at the children however they were emotionally impacted indirectly. This is in no way an attempt to limit the relationship with their Daddy whom they love. As the move is 2 hours away my view is that meaningful and regular contact can be maintained & I will offer to drive half way for day contact or when in the future over night stays. We are loosing our home shortly as my ex has chosen to pay the minimum child maintenance so we won't be that settled plus the children are young and therefore not in established settings. My husband's wider family are here and I'd be going to move best a close friend and her family. Do you have direct experience of this situation? I have a job waiting for me & housing.

That does sound like sufficient reason to move.

How old are the children? If they are in school you need the father's consent to change school. That's when you need to take the initiative.

If they're not in school you simply tell him what you're going to do and then do it. It's up to him to try and stop it then.

Afterthought - an "external" relocation means moving to another country (ie outside the UK). I presume that is not what you mean here.

Moving to another country requires the consent of the other parent in all circumstances.

External includes Scotland...

Children are not compulsory school age however a school place had been offered for when that time comes. Do you have any experience? I understand about the welfare checklist and as I have a job to go to, housing is better and cheaper, cost if living cheaper, support via a friend there & only a couple of hours distance & my commitment to facilitate and maintain regular and meaningful contact & I have provided 99% of all care & support to the children all of their lives.. I'm hoping that I have a string case..??

Moving to Scotland from England is not an external relocation. It is internal.

Absent a court order preventing it there is no requirement for a parent with care to obtain the consent of the other parent to a removal to anywhere else in the UK.

I have been a family law solicitor for over 25 years.

Thank you very much for your post however I am extremely confused as both my family Solicitor and my estranged husband are referring to Scotland as a forgein country seperate jurisdiction from England and Wales & I have been advised I need to make an application to Court to move there..??

I am not questioning your experience or knowledge but I have literally been told the opposite by my Solicitor and his?!

Collaborate - any advice or information you are able to provide would be really helpful please. I've been advised by my Solicitor the starting point if the Court us that I'm trying to reduce contact between my children and their father and I have to work uphill from there (!).

Either you've been given wrong advice or you've misunderstood the advice you've been given.

Scotland is a different legal jurisdiction to England and Wales, but when it comes to moving your child from one to the other there are no restrictions, contrary to what there would be if you wanted to remove a child to outside the UK.

It's s13 of the Children Act that prevents external relocation without consent:

(1) Where a [child arrangements order to which subsection (4) applies] is in force with respect to a child, no person may—

(a) cause the child to be known by a new surname; or

(b) remove him from the United Kingdom;

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

Common Law has further made very clear that removing a child from the UK requires the consent of all those with PR, whether or not there is a court order in place.

The leading decision in this area is Re C (Internal Relocation) [2015] EWCA Civ 1305. In this case the judge said that there is no need to show exceptional circumstances, and that the court should approach such cases in the same way as it would applications to remove from the UK.

The main difference is that the parent seeking to move the child to another UK country can simply up sticks and go without the consent of the other provided there is no existing court order preventing that, and provided it does not breach an existing order for contact or shared residence, or change the child's school.

The courts would prefer the parent who leaves to apply to court first for permission to go, but that is not strictly necessary and the usual application is made by the parent left behind.

There is no presumption that, having already been taken elsewhere without the consent of the father, the child should be returned to its home country. Re R [2016] EWCA Civ 1016

If it has already reached the stage where the solicitors have got involved over this issue you had probably better issue an application yourself.

Thank you so much for this information. I've been advised that I must infirm my estranged of my plans asap to prevent him applying for a PS Order to stop me even visiting Scotland. I was also advised that when in 2 weeks my rent is unable to be paid that if I take the children to Scotland to stay with a friend, that I will be charged with child abduction & made to bring them back even if I am going to be homeless. Is this correct?

No. That is wholly wrong.

Collaborate - I actually feel quite faint reading this considering the stress I am under and the option to go to Scotland to a safe place and have been catagorically told I must not do this due to child abduction. How on earth can two Solicitors have such opposing views. I'm in shock.