My wife and I recently divorced and we have two children together – aged 15 and 9. We both live in North London, but my ex-wife wants to move to Birmingham where her parents live. She says that it would be good for the children as she has lots of family there and there is a strong Cypriot community. I disagree. My ex-wife just wants to be close to her parents and I also think there is an element of doing this to get back at me (she blames me for the failure of our marriage) and to limit my time with the children. The children are settled here and love their school and friends and my 15-year-old categorically does not want to go. I am also obviously concerned about not being able to see them regularly if they go. We currently have a child arrangement where I see the children on Wednesdays overnight and alternate weekends which works well and it’s not feasible for my business for me to just up and move to Birmingham. Can my ex-wife just take the children if she decides to move?
Following a divorce or separation, it is not unusual for a parent to want to relocate with the children. It may be that the parent wishes to be closer to their family (as is the case with your ex-wife) or needs to relocate in order to find work, better schooling or to join a new partner who lives and works elsewhere. Provided the other parent does not object to the move and it does not significantly affect the child arrangements, this can be quite straightforward. We would advise that any agreement should be recorded in writing so that both parents are on the same page moving forward and any disagreements further down the line are avoided. If there is a court order in place, it may need to be updated by consent to provide for the new arrangements.
However, in your case, where you object to the move, your ex-wife will need to seek permission of the court by applying for a specific issue order, she cannot just up and move with the children! To provide the court with the circumstances pertaining to the relocation, your ex-wife will need to produce a witness statement explaining the practicalities of the proposed move in detail, including proposed accommodation, childcare arrangements, suitable schools, how contact will be maintained with you, and the reasoning for the move. The court will not look kindly on an application where it suspects the motivation is to frustrate time with you as you suspect. Her statement must also explain how time with you will be maintained and what the effect (including emotional) of a refusal of her application would have on her and the children.
As the parent opposing the application, you will also need to produce a witness statement with credible reasoning against the move. This includes the effect the move would have on you and your time with the children, the costs and difficulty of travel to maintain time with the children and the effect of allowing the application on them (including any problems you can see with the proposed living or educational arrangements for the children) as well as the wishes of the children as you understand them. We might also look to obtain statements from other family members who have close involvement with the children and who oppose the move.
The court must perform a balancing act between a series of complex factors that come in to play before reaching a decision. When the court is considering such an application, its paramount consideration will be the welfare of the children and the outcome of the relocation application will be based on what is in the children’s best interest.
To help him or her decide whe-ther the move is in the children’s best interests the judge will consider:
• the wishes and feelings of the children concerned so far as they can be ascertained, and bearing in mind each child’s age and understanding;
• the children’s physical, emotional and educational needs;
• the likely effect on the children of any change in their circumstan-ces;
• the children’s age, sex, background and relevant characteris-tics;
• the risk of the children suffering harm, and
• how capable each parent is of meeting the children’s needs.
The judge will also consider how permission or refusal to relocate will affect you, your ex-wife and the children and will consider yours and your ex-wife’s plans and whether the wish to relocate and opposition to it are genuine.
The judge may well be assisted in reaching a conclusion by a Children and family reporter from the Children and Family Court Advisory and Support Service (Cafcass). A Cafcass officer may be appointed by the court to speak to both you and your ex-wife, and possibly also to the children, and then to make a recommendation to the court.
It is often difficult to predict the outcome of court proceedings for leave to remove, however the fact that your 15-year-old does not want to go, and that both the children are settled and happy with their school and have good friends in North London, will be helpful to your application.
Christina is an experienced Family Lawyer at Collyer Bristow advising on all areas of relationship breakdown including divorce and separation, children issues, cohabitation disputes, nuptial agreements and financial claims. She has particular expertise in dealing with complex private law children cases, often with an international and religious dimension. The financial dispute cases that Christina works on tend to be high value and often also have an international dimension with trust interests or complex corporate structures.
Christina read Philosophy and Theology at Oxford University and before joining Collyer Bristow, she worked in Banking and Finance at DWF.
If you would like to contact Christina, please do so at christina.pippas@collyerbristow.com
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