Flexible working, and the impact of the pandemic, have affected families in many ways. For separated parents who differ on making a move, what happens to the children and how do they resolve these differences fairly with the children's best interests at heart?
COVID-19 has prompted people with the means to consider leaving big cities and move to less crowded suburbia or the country. Like all such matters, the decisions are more complex than may first appear. And to add to the difficulties what happens if, after a divorce, parents disagree about the best arrangements for their children.
In this article, Eri Horrocks, associate at Hunters Law, explores some of these issues. The editors of this news service are pleased to share these views and invite readers’ responses. To join the conversation, email email@example.com and firstname.lastname@example.org.
With guest articles, the usual editorial disclaimers apply.
The pandemic has led many to rethink their priorities, and the continuation of flexible working means that, for many, a life based in the countryside is now feasible. Attracted by open space and larger properties some are taking the plunge - but for separated parents, things may not be straightforward if only one of them wants to move.
Whilst taking a child to live abroad without the other parent’s agreement may amount to the crime of child abduction, this is not the case for moves within the UK. However, that doesn’t mean that a parent is simply free to relocate regardless of the other parent’s wishes.
No law specifically restricts a parent from moving with their children within the UK. However, the fact that certain decisions about a child’s life, such as moving school, or changing contact arrangements, generally require the consent of both parents means that in practice the consent of the other parent to a move is often needed. If agreement cannot be reached, either parent can ask the court to decide whether the move can go ahead.
Prior to 2015, the court took the approach that a parent should only be restricted from exercising their freedom to move within the UK in “exceptional” circumstances. However, that is no longer the case, with decisions now made purely on the basis of the children’s interests with no exceptionality test. As highlighted by a judge in the recent case of F v G  EWFC B12, “the decision is not about fairness to the parents, it is about what is best for [the children]”, and “the welfare of a parent is only important in so far as it impacts on the welfare of the child”.
The judge will therefore decide whether or not to permit the proposed move based on whether it would be in the children’s best interests - their welfare will be the court’s paramount consideration. The judge will hear evidence from both parents, as well as from a “Cafcass officer” - a social worker employed by the court - who will speak to the children and the parents and make a recommendation as to the course of action which would serve the children’s interests in the best way.
F v G involved two siblings, aged three and nine. The mother and children had temporarily relocated to the countryside, with the father’s agreement, during the initial lockdown in March 2020, so that the children would have more space. By summer 2020, the mother had decided that she wished to make the move permanent, in part because her new partner lived nearby. Whilst the father ultimately accepted that it would be best for the younger child to remain in the countryside with the mother, he successfully persuaded the judge that the older child should live with him in London.
The judge concluded that, particularly given the older child’s autism and difficulty in managing change, he should live during the week with his father in London, as living with his mother would require a change of school. The judge expressed some unease about separating the siblings but structured her order so that the children would spend every weekend and all of the school holidays together, alternating between their parents.
In her judgment, the judge raised concerns that the mother’s plans were not child focused, saying that the mother’s approach had led her to think that the mother was “seeking to mould the children’s lives around her own plans” - rather than organising her life around what was best for the children.
The lesson for any separated parent considering relocating is clear: they must ensure that their actions and their case-presentation reflect a child-centric approach. In putting forward their plans, particular emphasis should be given to how the child’s relationship with the other parent will be maintained and supported, through detailed contact proposals. They will also need to explain their motivation for moving, and provide a detailed picture of what life in the new location would be like for the child, including schooling, housing, and what the new location can offer in terms of activities, culture and amenities.
A parent opposing a proposed move will need to engage with the proposals in detail and raise any concerns, for example in respect of the proposed school, or the impact of the disruption and separation from friends and family. They would also need to focus on the benefits to the children of remaining in their current location, arguing that this would be in their best interests.
Court proceedings may not always be the best way to resolve a disagreement about children, and there are other options. Solicitor-led negotiations and mediation are options where skilled third parties seek to assist the parents in reaching agreement. If there is no prospect of agreement, then arbitration, where the parties appoint an experienced lawyer to make a binding decision (essentially a privatised version of the court system) has many advantages, including speed, privacy and convenience.
As the judge in F v G acknowledged, city and countryside living both have benefits for children, and much comes down to personal preference. As the case also shows, which is better for any particular child will very much depend on their specific circumstances - meaning that there can be no general rule on whether permission to move will be granted or not. What is clear, however, is that child-focused planning will be an important element in any successful application.