Can my ex-partner move away with our children?

If your children live with your partner and they wish to relocate to another part of England or Wales, they should seek your consent rather than just announcing their departure. If you disagree with the proposed move, your ex should request the court to decide whether the relocation should be permitted.

A parent has the right to attempt to prevent the other from moving and may seek a court order to stop the relocation. This order would prevent the child from being moved until the court has reviewed the case.

It should be noted from the outset that whether the parties have ever been married or in a civil partnership is irrelevant when it comes to relocating a child. The key factor is whether the parent opposing the relocation has parental responsibility.

We’ve assisted many clients - both mothers and fathers - in such situations. Whether you are worried about a partner relocating with the children, or you would like to relocate with the children, we can help. Click below for a free initial consultation with one of our expert Children solicitors.

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Can they move without my consent?

Internal relocation (moving within the UK)

A parent with primary care does not need to comply with any statutory requirements to relocate within the UK (which does not include the Isle of Man and the Channel Islands). However, according to case law, if the moving parent does not have the consent of everyone with parental responsibility, they should apply for a specific issue order.

If there is a child arrangements order (CAO) then this is likely to be successful, as there is a general assumption that the person named in the CAO as the person with whom the child will live can live whereever they wish within the UK. A CAO is the order made by the court setting out where the child lives and whom their primary carer is, as well as contact arrangements. The parent opposing the move can apply to the Court for a prohibited steps order (PSO) to prevent the other parent from moving. A PSO will only be successful if it can be demonstrated that the move would cause exceptional harm to the welfare of the child. The objecting parent could also, albeit rarely, apply for a condition attached to the CAO, which stipulates where the child can live. This is only likely to be granted where it is necessary for the child’s welfare.

External relocation (moving to another country)

If there is a CAO in place, no one can remove a child from the UK without the permission of the court, or the consent of everyone with parental responsibility.

The only exception to this rule occurs where a person named as someone with whom the child lives with in a CAO. This person can take the child abroad for a period of less than one month without any permission or consent. If this person takes the child out of the UK for over one month, and the child is under 16, a criminal offence will have been committed.

If a parent is not named in a CAO as a person with whom the child should live (even if they have parental responsibility), or any other person takes the child out of the UK for any period of time, then child abduction has occurred. If the child is under 16, a criminal offence will have been committed.

Where a child has been abducted, the child’s other parent can apply for the child’s immediate return under the Hague Convention.

If your ex-partner wishes to move abroad with your child, they will need to apply for a specific issue order. If there is an existing ‘lives with’ CAO in place, they may apply for the court’s permission to remove the child from the UK.

Some steps that you can take following this application are:

• Formally ask your ex-partner to surrender your child’s passport. This can be retained by your solicitor pending the outcome of any court proceedings or dispute resolution process
• Applying for a PSO that your child is not removed from the UK
• Applying for a ‘lives with’ CAO, requesting that your child permanently live with you, regardless of whether your partner chooses to move abroad themselves

How will the court decide whether to let my ex-partner move or not?

In any case involving the relocation of children, the governing principle is the welfare of the children involved. The court will make its decision based on what orders it believes are in the child’s best interest. This applies irrespective of whether the relocation is within the UK or to another country.

In determining a question of the relocation of a child, the court will consider the factors set out in Payne v Payne as well as the welfare checklist. The factors set out in Payne are:

• The welfare of the child is always the paramount consideration
• There is no presumption in favour of the parent making the application to move
• The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight
• The proposals must be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end
• The effect upon the applicant parent and the new family of the child of a refusal of leave is very important
• The effect upon the child of the denial of contact with the other parent and in some cases his family is very important
• The opportunity for continuing contact between the child and the parent left behind may be very significant

These factors do not act as a prescriptive blueprint, but instead as a checklist of the factors that may need to be considered when determining what would best serve the welfare of the child. This applies to both internal and external relocation cases.

The courts have been willing to deny internal relocation only in rare circumstances, where the child would be moved to a very distant and remote area. External relocation applications are much more readily declined, especially in instances where a CAFCASS (Children and Family Court Advisory and Support Service) report has recommended against the move. Ultimately, the court will address each application on its own merits, especially in respect of the welfare of the child.