Relocation abroad with a child – what is the law?

Throughout the pandemic, we have seen more enquiries involving parents wishing to re-locate abroad with a child (or children). This can be for lots of different reasons, for example a parent wanting to be nearer to family living abroad or there may be better employment options abroad etc. Specialist child law advice will be required.

If an agreement cannot be reached between both parents allowing one of them to relocate with the child, an application would need to be made to court so the court can determine whether the relocation should be allowed to proceed. The court would have to balance a number of factors, whilst having the child’s welfare at the forefront of its mind (ie the court has to come to a decision which is in the child’s best interests).

The case law is clear in that, when determining these cases, the following principles apply:

1. The welfare of the child involved is the paramount consideration and the impact of any move must be balanced in light of a wider welfare analysis looking at the child’s physical, educational, social and emotional needs.

2. The court must carry out a holistic evaluation of the plans proposed by each parent. The parent wishing to move away would need to evidence clear, researched plans including living arrangements, employment arrangements, medical arrangements and schooling for the child. The court would also consider what the genuine motive for the move is on behalf of the parent wishing to relocate.

3. The court must factor in the rights of the child to maintain a personal relationship and direct contact with both parents on a regular basis. The court would need to consider the impact of that upon the child’s relationship with the parent left behind.

4. The court must take into account the rights of the parents and balance those.

The difficulty in these cases is that often the answer is ‘black or white’. The child and parent are either permitted by the court to relocate and live abroad or they are not.  However, interestingly in the recent case of AY v AS and Another (Relocation) [2020] 1 FLR 536, the court took a ‘middle ground’ approach.

This case concerned an application of a mother to move back to Kazakhstan where her family were living.  The father opposed the application.

Mr Justice Mostyn asked the question as to whether the risk to the quality of the bond between the father and the child, could be outweighed by providing the mother with the personal contentment and fulfilment in moving back to Kazakhstan where her family were.

Mr Justin Mostyn stated “at the present time, my answer is no. My conclusion is, until an internal relocation has been offered to the mother and has been attempted in good faith and failed, the mother’s proposal for contact (which was that the father see the child in Kazakhstan and also by regular WhatsApp video contact) was unreasonable and contrary to the child’s best interests”.

The mother’s application was therefore unsuccessful but the court took a ‘middle way’ approach which was not envisaged by the father either. Mr Justice Mostyn incentivised the father to cooperate with an internal relocation plan by the mother (ie encouraged him to agree to the mother moving to another part of England and Wales rather than abroad). The court also confirmed the mother could holiday with the child in Kazakhstan to allow the child to meet her Kazakhstani family and maintain those relationships.  Mr Justice Mostyn concluded that was the approach required in the best interests of the child.

This case shows a step away from the ‘black or white’ approach and it will be interesting to see whether or not this results in further relocation cases being dealt with in a similar manner (ie the court coming more to a ‘middle way’ decision).

If you have any queries about a potential relocation with a child or in respect of children matters generally, you should always seek legal advice on your options.