Relocating abroad following the pandemic

A parent with parental responsibility who is considering relocating with their child abroad must obtain the consent of the other parent with parental responsibility. Failing this, an order of the court granting permission to relocate permanently with the child is required.

Relocation applications, also known as applications for leave to remove, are already among the most difficult applications which are made in the family courts, and this article considers the impact, in our experience, of the Covid-19 pandemic as restrictions continue to ease.

What will the court consider when deciding whether to grant an application?

When approaching applications for leave to remove, the court must undertake a careful balancing exercise, given the potentially significant ramifications: distance will almost inevitably change a child’s relationship with the ‘left behind’ (respondent) parent.

The child’s welfare is the court’s paramount consideration, and the court will also apply the welfare checklist, taking into account:

• The ascertainable wishes and feelings of the child concerned (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 their circumstances
• The child’s age, sex, background, and any characteristics which 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 (and any other relevant person) is of meeting the child’s needs
• The range of powers available to the court

Case law indicates that the court should not distinguish between cases with a ‘primary carer’ and where care is ‘shared’, although prevailing childcare arrangements may well be considered. The court will scrutinise the proposals and motives for the move, as well as the respondent parent’s motivations in opposing it. The court will also consider the impact of relocation on the respondent parent and the impact of a refusal on the applicant parent.

Cafcass is the Children and Family Court Advisory and Support Service, an independent body whose advisors assist the court by providing evidence as to what is safe and in the best interests of a child. A Cafcass advisor or jointly instructed independent social worker meets with the child, both parents and others, such as teachers and therapists, and provide recommendations. While not conclusive, the court is likely to find this evidence persuasive.

How have relocation plans changed?

Relocation plans that were put on hold during the pandemic are now resuming, but the pandemic itself has also been a catalyst. Much has been written about the exodus from cities during the pandemic, aided by the normalisation of flexible working. As children law practitioners, a similar effect can be seen as families opt to move abroad.

For example, clients have had the opportunity to work overseas in their ‘dream location’ and thus provide their children with a multicultural upbringing and greater amenities. High net worth families, who were able to spend the pandemic abroad, might now look to make a permanent move. We have also seen separated parents, whose families live abroad, contemplating relocation as the pandemic has exacerbated their isolation and lack of support network in England. Similarly, the financial impact of separating can be a motivator in returning to a parent’s country of birth to benefit from family support.

What should be considered as part of an application?

The pandemic and its lockdowns have challenged previous assumptions. It was commonplace to argue that the world was smaller and more connected than ever. However, even as restrictions eased, uncertainty and vaccine passports continue to add complications. While it was always necessary to explain the choice of a particular region, and practicalities such as education, healthcare, immigration issues and travel and contact proposals, it is more important than ever to set out a detailed plan, supported by comprehensive research, which should also consider the impact of the pandemic.

Effective proposals for indirect contact (such as video calls) are also necessary to enable a quality on-going relationship with the other parent and in the event of further travel disruption. These will need to be more comprehensive for applications involving younger children whose shorter attention spans and inexperience with technology may limit their ability to maintain a positive parental relationship virtually.

Finally, focus on a parent’s isolation from their family during the pandemic should be limited. While lockdowns have undoubtedly been difficult for separated parents who do not have a support network in England, an applicant should be wary of highlighting this to the exclusion of other issues. The concern is that a judge is likely to conclude that a child will suffer similarly if they move further away from one of their parents. A judge, and the respondent parent, will undoubtedly consider that this burden should be borne by a parent and not a child.

What further effects should be considered?

The family court has remained open throughout the pandemic, although a far greater proportion of cases are now held remotely. The move to online hearings has been successful and is likely to remain, although final hearings, where parents provide oral evidence, are more usually held in person. As applications for leave to remove are by their very nature polarised, and final hearings are generally required, parents are likely to have to attend court in person.

The pandemic has however increased the pressure on the courts, as hearings were postponed, and staff shortages caused delays. Alternative methods of dispute resolution, such as mediation, are therefore gaining in popularity. While relocation cases are among the most difficult to settle, specialist mediation services, including co-mediation, child inclusive mediation and shuttle-mediation, as offered by the charity Reunite, are particularly helpful. Barrister-led mediation is also increasing, as parents benefit from input from an individual with a legal background and who regularly works on relocation cases.

Cafcass is also under pressure. During relocation applications, plans are necessarily paused, and it is often desirable that proceedings are brought to a swift conclusion. In high net worth cases in particular, the instruction of independent social workers is becoming more prevalent, as they can produce a report in a shorter timeframe. The benefits are tangible, and many practitioners seem to consider that this trend will remain even following the pandemic.

It remains to be seen whether the courts will, in the long-term, treat the pandemic as an unprecedented and one-off event. For the foreseeable future, however, it must be still be a primary consideration of any parent wishing to relocate with their child(ren), particularly with different countries still having differing approaches on how they live with Covid-19.

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