‘She Can’t Do That’

By Tamara Glanvill

Partner

23 February 2023

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I have written before about  BBC Radio 4’s ‘The Archers’ storylines as, common to all soap operas, they tackle  issues facing many people in society.

The latest storyline which particularly caught my attention relates to Lee and Helen. Lee and Helen both have children from previous relationships and Lee has a good relationship with his two daughters, Mabel and Evie and sees them regularly, though they primarily live with their mother.

Lee was told out of the blue that his children and ex-wife are heading to live in San Francisco. Lee, not unlike other parents who have faced a similar bombshell, is devastated and furious in equal measure.  “She can’t do that; she needs my permission”. Whilst that is true, there are alternatives if Lee doesn’t give his permission – and ultimately she can ask a Judge to decide.

The technical legal term if a parent wishes to take a child to live outside the country, is ‘international relocation’ or ‘removal from the jurisdiction’. In this increasingly international world, it is an issue which comes across a family lawyer’s desk more and more often.  Like many things in law, the devil is in the detail.

There are many reasons why a parent may wish to remove a child from the jurisdiction notwithstanding the other parent will be left behind:

• they have family overseas that they want to be closer to
• they want to move back to their birth country and raise their child within that culture and language
• they have got a job in another country
• they want to go on holiday or travel for longer than a month
• they have a new settled relationship with someone who lives in another country

Whatever the reason for the move, Lee is (partly) right – it is necessary to seek the consent of the other parent and anyone else has Parental Responsibility before doing so. If consent is not given, it may be considered child abduction, which would have both civil and criminal consequences; it is not a decision to take lightly for a myriad of reasons.

As with many family law issues, there is no one-size-fits-all answer. Every situation is different there will be a unique history to the parents’ relationship and relationships with their children – and their children will have their own unique needs.

A Court asked to determine the issue where parents can’t agree, will have regard to very strict legal principles set out in the Children Act 1989 and the significant volume of case law which will provide guidance.

The paramount consideration be the welfare of the children. It will not be not a binary exercise. There will inevitably be advantages and disadvantages and the decision will often be finely balanced. The starting point will be to ask the following questions:

• Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the other parent from the children’s life?
• Is the application realistically founded on practical principles both well researched and investigated?
• What would be the impact on the (leaving) parent’s new life of a refusal to a realistic proposal?
• Is the opposition motivated by genuine concern for the future and the children’s welfare or is it driven by emotion?
• What would be the extent of the detriment to the parent left behind and their future relationship with the children if the application was granted?

There is no legal principle, let alone some legal presumption in favour of an application to relocate.

It is not litigation which anybody should enter into without having had very careful advice on the application and the very specific circumstances each case presents. It is expensive and it is very often the case that the children and parents are pitched against one another. Children may be promised dreams and may not really have a clear understanding about the impact of relocation in its widest context. In short, it can be devastating for all involved.

Fortunately, there are some excellent options to facilitate the discussions between the parents faced with these choices without having to ask a Judge to decide. Lawyers can advise and help parents understand these options. Often in tandem with legal advice, a mediator can provide an opportunity to have open, frank conversations, can guide decision making and explore the questions posed above. It is almost always better to reach an agreement rather than have one imposed by a court.

It was with some relief to me that, despite understandable disappointment and his fears of how his relationships might change with his daughters, Lee – with the help of some very pragmatic advice from Helen and his father in law – was able to offer his consent without the stress and cost of legal proceedings.

If he had needed legal advice, we would have been happy to help.

Taylor Walton’s established Family law team are on hand should you need legal advice on family law matters, we have a wealth of experience across the team. Tamara Glanvill is a Partner, based in our Harpenden office, you can email her or call her on 01582 765111.

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