If you are separated from a child/ren's parent or legal guardian, and you decide to move away, you should obtain the consent or permission from everybody who has parental responsibility in respect of that child.
Parental responsibility (PR) consists of "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." (section 3(1) of the Children Act 1989). A person with PR is entitled to make decisions about the child's welfare and their property. There is little statutory guidance about those people where they share PR, whether they are able to act independently of each other, or in consultation with all others who have PR.
The only thing that appears to be certain when making decisions surrounding children is that where there is no agreement, then that decision must be referred to the Court for determination and this is very much the case where a parent wishes to relocate a child or children to a different location whether this is within their local area, or whether it is a relocation to another part of England and Wales or whether it is a relocation overseas. The magnitude of such a decision cannot be underestimated and any such permanent move will require consultation with all people who have PR for a particular child or children.
In attempting any move away from the area, you should always ensure that this is going to be in the best interests of the child, and that you have researched education and medical facilities in your chosen area. The correct approach in the event of a disagreement would be to make an application to the Court for a specific issue order, under section 8 of the Children Act 1989. If you do not give permission or consent for such a relocation, an application to the Court could be made for a prohibited steps order, essentially asking the Court to make an order prohibiting any such relocation unless or until everybody with PR is satisfied that it is in the best interests of the child concerned.
Judicial consideration for determining an internal relocation (ie, within England and Wales) will be treated differently to a permanent relocation abroad. A different rationale will be applied but ultimately, the Courts decision will always rest on what is in the best interests of the child. The prevailing principle will always be that of child welfare.
The stakes are always considerably higher with an external relocation because the Court only has two options - to either grant the application to take the child abroad or oversees, or reject the application and prevent any such move from taking place.
The Court must consider how genuine such an application is and whether there is a genuine desire to relocate with a realistic plan as to how the best interests of a child will be preserved. If the Court considers that the application is motivated to prevent or limit a relationship, it is unlikely to succeed.
The Court will always apply a global holistic welfare evaluation and apply proportionality in order to evaluate any application for a permanent relocation.
Each and every case will be decided upon its own facts and professional advice is an absolute must before attempting to permanently relocate a child or children whether that is home or away.
All of our family lawyers are members of Resolution and will be happy to assist you with any Family Law issues.
This is not legal advice; it is intended to provide information of general interest about current legal issues.