Disputes involving children can be among the most emotionally charged and complex aspects of family law. One of the most contentious issues arises when one parent wishes to move a child to a different location without the consent of the other parent. This situation presents a host of legal, emotional and practical implications. It becomes particularly intricate when the proposed relocation is a significant one—whether to a different part of the country or abroad. In England & Wales, the law provides clear guidance on how such cases should be approached, placing the welfare of the child as the paramount consideration.
Parental Responsibility and the Legal Framework
To understand what happens when one parent seeks to relocate a child without agreement, it is essential to first grasp the concept of parental responsibility. Under the Children Act 1989, parental responsibility means all the rights, duties, powers, responsibilities and authority a parent has in relation to their child. Mothers automatically have parental responsibility from birth. Fathers also have it if they are married to the mother at the time of the child’s birth or are listed on the child’s birth certificate (after 1 December 2003).
Where both parents have parental responsibility, neither can unilaterally decide to remove the child from the jurisdiction of England & Wales, even temporarily for a holiday, without the other’s consent or a court order. In the case of relocation disputes, the starting point is that major decisions should be made jointly.
Internal vs International Relocation
It is important to distinguish between two types of relocation: internal and international. Internal relocation refers to moving within England & Wales, while international relocation involves moving the child to a different country entirely.
Although both types of relocation require careful legal consideration, the courts tend to draw a sharper focus on international relocations due to the potential for drastically limiting the contact between the child and the parent left behind. In contrast, internal relocations, while still capable of significantly impacting existing contact arrangements, are often approached by the courts with a different lens, particularly in light of the principle that families are free to choose where they live within the country.
Moving a Child Abroad Without Consent
Attempting to take a child abroad for more than 28 days without the consent of all others with parental responsibility is illegal unless the court has granted an appropriate order. This is considered child abduction under the Child Abduction Act 1984. This law exists to prevent one parent from undermining the other’s rights and potentially placing the child in a permanently inaccessible or alien environment.
In such circumstances, the other parent can apply to court for a Prohibited Steps Order to prevent the relocation and may also be able to obtain a Port Alert, notifying the police and preventing the child from being taken out of the country via any port or airport. The court can act swiftly in such matters, particularly if there is a suspicion that a parent might unilaterally take the child away.
The Process of Seeking Permission to Relocate
If one parent genuinely wishes to relocate with a child, they should begin by seeking the other parent’s consent. If that consent is not given, the parent must apply to the family court for a Specific Issue Order under section 8 of the Children Act 1989. The court will then assess the proposed move in the light of the child’s welfare and circumstances.
In certain situations, a parent may also seek a Child Arrangements Order (CAO) specifying who the child is to live with and the time the child spends with the other parent. Importantly, if a parent has a CAO naming them as the resident parent, there is a legal presumption that they can take the child abroad for up to 28 days without the other parent’s consent. However, this does not imply a right to permanently relocate the child abroad.
Child’s Welfare as the Paramount Consideration
A central principle of children law is that the welfare of the child is the court’s paramount consideration. In relocation cases, this takes precedence over the interests or desires of either parent. The courts apply the ‘welfare checklist’ established in section 1(3) of the Children Act 1989, which includes:
– The ascertainable wishes and feelings of the child (considered in light of their age and understanding)
– The child’s physical, emotional and educational needs
– The likely effect on the child of any change in circumstances
– The child’s age, sex, background and any characteristics the court considers relevant
– Any harm which the child has suffered or is at risk of suffering
– How capable each of the child’s parents is of meeting their needs
– The range of powers available to the court
The application of this checklist means that courts approach each case individually and consider a range of factors before allowing or denying relocation.
Case Law and Judicial Attitudes
Historically, the courts in England & Wales were relatively supportive of applications to relocate abroad if the parent with primary care presented a well-thought-out plan and the move could be shown to ultimately benefit the child, even if contact with the other parent were to be reduced. This approach, often associated with the 2001 Court of Appeal case of Payne v Payne, focused on the potential depression and emotional impact on the relocating parent if denied permission to move.
However, in more recent years, judicial attitudes have evolved. While Payne v Payne is still often cited, it has been clarified by cases such as K v K (2011) which underlined that the welfare of the child is paramount and that both parents’ roles are important. Courts no longer automatically assume that a mother or primary carer’s needs should override the interests of the child maintaining a close relationship with both parents.
In practice, this has made successful applications to move children abroad more difficult, particularly when the move would significantly reduce or make impractical the other parent’s contact.
What Happens When Consent is Not Given?
When a parent attempts to relocate a child without the consent of the other parent and without a court order, the action can be seen as unlawful. If discovered, the responding parent can immediately initiate legal proceedings, including applying for the return of the child and potentially involving international conventions such as the Hague Convention on the Civil Aspects of International Child Abduction if the move has already occurred.
Domestically, if the child has not yet been relocated, the court can intervene quickly to issue injunctions such as a Prohibited Steps Order or an order under the inherent jurisdiction of the High Court. In emergency situations, these orders can be applied for without giving notice to the other parent, although the court will usually arrange a follow-up hearing where both parties can be heard.
If the court finds that a parent acted without authority and attempted or completed an unlawful relocation, there may be serious consequences. The court may adjust residence arrangements in response, and they are also able to consider sanctions such as fines or, in very serious cases, even committal for contempt of court.
Alternative Dispute Resolution and Mediation
Before initiating court proceedings, the family court strongly encourages parties to attempt alternative dispute resolution (ADR), including family mediation. These sessions can provide a neutral setting for parents to discuss difficult decisions with the help of a trained mediator.
While mediation is not always successful, and may not be appropriate in every case (such as where there has been domestic abuse), it can sometimes help parents reach an agreement that works practically for both sides and prioritises the child’s best interests.
To commence legal proceedings for a Specific Issue Order or Prohibited Steps Order, applicants are usually required to attend a Mediation Information and Assessment Meeting (MIAM), unless exempt. This is designed to encourage out-of-court settlements wherever possible.
Impact on the Child-Parent Relationship
Relocation disputes inevitably place a strain on both parents and the child. It is important to consider the emotional and psychological impact on the child when one parent plans to move them a considerable distance away from the other.
Even when the move is within England & Wales, practical difficulties in maintaining meaningful face-to-face contact with the non-resident parent can be significant, particularly if travel times are long or financial resources limited. When the proposed move is abroad, the hurdles grow exponentially and may involve different schooling systems, languages, cultural adjustments and time zone differences, which can make ongoing contact arrangements difficult to maintain.
To mitigate the impact, the court will scrutinise any proposed relocation plan. The parent who wishes to move must show that they have thought carefully about how the child will maintain a relationship with the other parent, be it through regular video calls, scheduled visits (including during school holidays), and financial support for travel costs.
Considering the Child’s Voice
As children grow older, their own opinions become increasingly important in court proceedings. A child who is mature enough to express a view—usually from around age 10 and upwards—may have their preferences taken into account by the court. The views of older children, particularly teenagers, may be given considerable weight.
In many relocation cases, the court may request a report from the Children and Family Court Advisory and Support Service (Cafcass), which will typically involve speaking with the child and providing recommendations to the court. Although such reports are not legally binding, judges will often give them significant consideration.
Final Thoughts
In all relocation cases, no matter how emotive or contested, the guiding principle of the family courts in England & Wales remains the child’s welfare. Courts do not take lightly the impact of a move on a child’s relationship with either parent, especially in circumstances where that relationship could be materially diminished or severed.
If you are considering a move and the other parent does not agree, it is vital to engage early with legal advice and consider constructive dialogue before turning to court action. Conversely, if you suspect the other parent is planning an unauthorised move, swift legal intervention might be necessary to protect your rights and your child’s stability.
Ultimately, the law seeks to uphold not just parental rights but first and foremost the well-being and long-term security of the child at the heart of the dispute. Through careful planning, informed decision-making and, where possible, cooperation between parents, it is often possible to find an outcome that respects everyone’s future—especially the child’s.