Relocating after divorce must be in the child’s best interests

With the rise in “international” marriages and relationships, more children have been born to parents of more than one nationality. In the event of a breakdown of the relationship, it is not uncommon for one of the parents to want to return to their home country. If children are involved, difficulties can arise. A parent is only permitted to relocate with their children to a country outside of England and Wales with the consent of the other parent with parental responsibility. If consent isn’t given, the parent wanting to move has to make an application to the family court for permission to relocate the children.

Such applications are notoriously difficult for the court to determine. The impact of refusal on the parent wanting to return to their home country following the breakdown of a relationship can be very painful and they could end up feeling trapped. On the other hand, if permission to relocate is granted, the parent left behind can be equally distressed because of the impact of the move on their relationship with their children.

When deciding whether or not to grant permission to relocate, the courts sole focus is making a decision that is in the best interests of the child(ren). Whilst over the years the courts have weighed up various factors, such as what the reasons for the move are and what the reasons for the opposing parent’s objections are, the one and only principle that the court must consider is the child’s welfare. This has been reemphasised in a recent decision by the Court of Appeal, which considered an appeal against a decision to grant permission to a mother to relocate to Germany with her twelve year old daughter. It ruled that whilst the impact on both parents may be relevant, the focus must be on what is best for the children. There is no presumption in favour of either parent; each case will turn on its facts.