When a relationship breaks down it is often the case that one of the parties wishes to move to another part of the UK, often back to their hometown, or because they are seeking a better quality of life, pursuing a career or a new relationship. However, when there are children of the relationship, what are the rules regarding relocation with the children?
Children Act 1989 and Parental Responsibility
Parental Responsibility is a legal term introduced by the Children Act 1989 and is defined as ‘all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.
A mother automatically acquires parental responsibility when the child is born. A father, if married to the mother at the time the child is born will also automatically acquire parental responsibility.
If the father is not married to the mother, then provided the child was born after 1 December 2003 and provided he is registered on the birth certificate he will acquire parental responsibility automatically. If he is not so registered he can acquire parental responsibility by agreement with the mother or by an order of the court. This is also the case for fathers of children born before 1 December 2003.
Parental responsibility confers the power to make decisions for and on behalf of a child. Parents with parental responsibility can act independently in making decisions without having to consult the other parent on many decisions affecting the child. Parents exercise parental responsibility on a daily basis in caring for their child, by making day to day decisions, such as to what a child eats, where and how they spend leisure time and do their homework.
However there are some decisions that require the consent of all parties with parental responsibility, for example a parent cannot change a child’s name, consent to adoption or remove a child from the jurisdiction of the UK without the consent of all persons with parental responsibility. Removing a child from the jurisdiction of England/Wales (one jurisdiction) permanently without the consent of those with parental responsibility would be a criminal offence. Trips abroad for a holiday of up to four weeks at a time do not require specific consent when a child arrangements order (previously residence order) is in force.
There are some decisions that a parent with parental responsibility can make alone and although there is no legal requirement to obtain the consent of the other persons with parental responsibility it is sensible that they should be consulted before a decision is made. For example those decisions would include consenting to medical treatment, enrolling a child at a particular school, and deciding the child’s religion.
Does Parental Responsibility impact upon relocation within the jurisdiction?
If a parent wishes to relocate within the jurisdiction with their child, the other parent with parental responsibility should be consulted as such a move would involve such decisions as to where the child should live and attend school, and may significantly impact upon that parent maintaining contact with their child.
However permission of the court is not required to move with a child within the jurisdiction of England and Wales and the parent opposing the move can prevent the other parent from relocating with the child by making an application to the court for a prohibited steps order.
A prohibited steps order is an order under the Children Act 1989 which forbids a parent from taking steps as specified in the order in meeting his or her parental responsibility. This can include an order forbidding a parent from moving out of a certain geographical area with the child without leave of the court.
Where there is a dispute about internal relocation the proper course of action is for the parent wishing to relocate to make an application to the court for a child arrangements order and a specific issue order under the Children Act 1989. This is essential if a move means a change of school for the child against the other parent’s wishes.
A child arrangements order enables the court to settle with whom the child should mainly live and regulates how the child should spend time with the other parent.
A specific issue order enables the court to determine any dispute regarding a specific issue which has arisen in relation to the exercise of parental responsibility, such as where the child should live and attend school.
When determining the issue the court will consider the best interests and welfare principals laid down in the Children Act 1989. The court will have regard to the ‘welfare checklist‘ in addition to the individual circumstances of the case. The child’s welfare is the ‘paramount’ consideration for the court.
The general principal laid down in case law is that the court will not impose a restriction on the primary carer’s right to live where he or she chooses within the UK unless there are exceptional circumstances. Cases are therefore decided on the individual facts of each case.
If you would like to find out more about the issues raised in this article or need advice concerning family and divorce matters more widely, please contact our expert Family & Divorce team on family@bishopandsewell.co.uk or call 020 7631 4141.
