Surviving Christmas: our top tips for separated parents

surviving christmas

Surviving Christmas: tips for separated parents

Christmas, for many, is all about children. The excitement of the tree being decorated, the school carol concert, the anticipation of receiving gifts – it can be a very emotional period, particularly so for those dealing with the added pressure of a past separation from a former partner, and all that brings in respect of complications for family life.

Here, managing partner Amanda McAlister offers her top tips to separated parents for surviving Christmas.

Trying to agree contact arrangements and when or where the children will spend time with each of their parents can be difficult at the best of times, but there is something about the emotions around Christmas that can cause real problems.

Issues of managing and maintaining contact with children following separation can of course become a difficult issue for parents living apart; while any difficulties in the relationship may well be those of the parents, it is the children who can reluctantly find themselves in the midst of adult arguments, confused that those to whom they look for guidance are not getting along and often incorrectly blaming themselves for either parents’ upset or even anger.

Focus on the children’s needs

It is easy and perhaps natural for a parent going through such a difficult time to concentrate on themselves at these times, but it is very important, if trying to sort arrangements out amicably, not to lose focus of a child’s needs or emotional wellbeing when they may already be feeling overwhelmed and trying to understand why their parents might not be friends, as  well as feeling distress and confusion about their new family circumstances.

If charged with deciding, the court will determine matters in accordance with what is in a child’s best interests. As such, even if it’s not what you want to hear personally, try and listen to your children, they may well help you in taking a step back from your own bubble and decide what’s best for them.

Plan ahead, and keep lines of communication open

Good forward planning and open lines of communication with the other parent are essential when working towards organise your children’s Christmas. Despite past difficulties, there are families who are able to work together to the extent that they can celebrate Christmas together, although sadly this is not the usual situation.

However, whether you and your former partner are on good terms or not, taking the time to plan your child’s Christmas gives each other time to come to a mutual decision about what’s best. From selecting Christmas presents together or arranging how and where the children are going to spend time with each of their parents over the festive period, the welfare of your children is what’s important.

Modern families

And it’s not just parents to consider; modern families come in all wonderful shapes and sizes. One-size-fits-all arrangements will not work in all circumstances no matter how hard one tries – you are likely to have to factor in each side’s extended family, there may be other siblings, and more – it takes time and effort to make the arrangements as special as they can be.

Two Christmasses?

I have seen arrangements agreed where the children have spent the first half of Christmas Day with one parent, opening their presents and having an early lunch, before being able to spend the afternoon and evening with the other parent.  Some families even have two “Christmas Days”, each one celebrated with either parent and alternated each year, particularly if families are separated by a considerable distance and therefore decide to take turns to have the children with themselves over Christmas or New Year.

It isn’t easy but it needn’t be difficult either. A little bit of seasonal good will can go a long way and we would encourage you to try and give a little to reach an agreement that will suit everyone involved, particularly your children.

If you’re affected by any of the issues raised here, please get in touch immediately. We’re here to help you.

The future of remote court hearings

the future of remote court hearings

The future of remote court hearings

“If thou never wast at court, thou never sawest good manners”  Shakespeare: As You Like It: Act III Scene II

The President of the family division, Sir Andrew McFarlane, recently gave a speech outlining his opinions concerning the future of remote hearings, and what a post-Covid return to the courts might look like.

McFarlane advocates for Judges being able to adopt a case-by-case approach, “unfettered by any prescriptive diktat from on high”.

Family Law paralegal Nina Rawlings examines what this means in practice and how will it affect those who have spent the past 18 months addressing the court from behind a screen in, for example, their own living room.

First, we must consider the impact that going remote had on the court system and on those of us working in care proceedings. If we diplomatically disregard the initial chaos for many firms, caused – understandably – by the sudden and on the whole unexpected complete closure of the physical courts, what emerged over the coming months were a significant number of positives.

At McAlister Family Law we swiftly adopted an online bundling system, but given that our offices were already entirely paperless, we were, unlike others, entirely prepared. Not only does going paperless have environmental benefits that Greta Thunberg would applaud, but when dealing with confidential disclosure it makes far more sense in our GDPR cautious society for bundles to be sent securely online rather than handing a physical pile of sensitive information over to a stranger.

Furthermore, we will see shortly the introduction of the HMCTS Family Public Law online system in our area; a new digital operating model which seeks to transform the way justice is administered by simplifying, centralising and enhancing the entire process of issuing and monitoring cases. Albeit a project that has been underway since pre-Covid, one cannot help but acknowledge the assistance of increased IT usage resultant of the pandemic in preparing firms for migration onto, and navigation of, the new system.

Attendance at hearings

This is something of a double-edged sword. On the one hand, remote hearings enable barristers and solicitor advocates to cram more into their already busy days. By removing travel time from the equation, in theory it becomes possible to attend more hearings per day and to exist beyond the constructs of your defined geographical area of practice. However, the result of this is the removal of what McFarlane refers to as the “human perspective”. While the remote hearings system may make the process of hearing matters more efficient, it makes the issue of pre-hearing discussions more complex both among the advocates and with the client. Previously, you could simply pop from court waiting room to court waiting room delivering and requesting information as suits, now you need several teams links, some telephone dial-in details, sometimes an interpreter on standby and the client waiting in the wings. Time and space do not exist in the remote hearing sphere and issues which could easily be resolved in person become the subject of a domino-like procession of instruction and communication. Furthermore, in the childcare domain – as I imagine applies across the board – a question of ethics arises: can parties really receive a fair trial over video call? Can we justify removal of children based on evidence given over a telephone?

What is the solution?

McFarlane posits that “remote platforms are good for undertaking transactional communications”, a statement with which I wholly agree. Remote hearings offer a unique opportunity to deal efficiently, and effectively, with case management hearings, re-timetabling, pre-trial reviews and more.

Moving forward this would reduce cost, avoid delays and free up judicial time. However, there must be a careful evaluation by Judges of the case matter of each case in question. It seems to be common opinion amongst those in the profession that any contested hearing, finding of fact, final hearing or urgent hearing must be prioritised in terms of physical attendance as we transition back into the court rooms.

I believe that for certain hearings, each should be determined on a case-by-case basis, not least because there will always be cases where it is not appropriate to conduct the hearing remotely.  That belief therefore indicates a need for a court set-up which allows for both in-person and remote witness evidence. Given how we have adapted our court hearings during the pandemic, doing so does not seem an impossible task. Let’s see what happens.

If you are affected by any of the issues raised here, please do get in touch. We’re here to help you.

UPDATE: Back to school – or not?

back to school or not UPDATE

Back to school - or not?

Recently we blogged about Laurence Fox and his claim that he would take his sons out of school should vaccines be rolled out for 12-year-olds on the basis that he feared they would have the Covid jab without his permission.

Now there has been a case in America where a father in New York has been banned, by a family court judge, from seeing his daughter unless he gets the Covid vaccination.

Family Law Associate Melissa Jones looks at the issues.

This is an interesting scenario. In this particular case, contact was not deemed to be in the best interest of the child on the basis that  the father was opposed to the Covid vaccination. The judge was quite strict in his ruling, notably amid a worrying time in the middle of a global pandemic, and made the following comments:

“The dangers of voluntarily remaining unvaccinated during access with a child while the Covid-19 virus remains a threat to children’s health and safety cannot be understated.

“Unfortunately, and to my mind, incomprehensibly, a sizable minority, seizing upon misinformation, conspiracy theories, and muddled notions of ‘individual liberty’, have refused all entreaties to be vaccinated.”

What happens with contact in the UK if a parent refuses the vaccine?

It’s a possible worry for a lot of parents, but not one that has seemingly featured in the family courts in England and Wales. If this was a matter raised by a parent, within the English Courts, those Courts are likely to be guided by Cafcass, the advisory service to the Courts, to prepare an assessment to consider the risk factors and to decide whether contact is actually in a child’s best interest.

Extreme circumstances

In extreme circumstances, particularly if a child is medically vulnerable, Cafcass and the court may exercise caution: but it would be a rarity.  No doubt the Court would also consider NHS guidance and other expert evidence they consider necessary.  Plus, there are now many modern alternatives to face-to-face contact, such as video contact and voice notes, that could mean the parent and child relationship could be maintained.  It is a child’s right to have a relationship with both parents and the Court will want to maintain that relationship wherever possible.

The court application

If the other parent is strongly opposed to their child being vaccinated (not just the Covid vaccine) and they cannot agree on this, then they could apply to the court for a Prohibited Steps Order and/or Specific Issue Order, which are orders that can prevent certain actions being taken by a parent, and/or making decisions on matters that parents cannot agree upon in the exercising of their rights and duties relating to parental responsibility.  Medical issues fall into these categories.

The court will consider the parents’ opinions and the best interests of the children.

Before making an application to the court, it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to agree to vaccinate your child, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move.

With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re here to help you.

When Adam met the judge

when adam met the judge

When Adam met the Judge

Adam: “Hi Judge. If you send me and my brothers home, will you give us a bodyguard?”

Judge: “Adam, if I thought you needed a bodyguard, I wouldn’t send you home.”

Partner Nick Hodson has specialised in the law relating to children for more than 20 years. Since 2001 he has been a member of the Law Society Children’s Panel, allowing him to represent children in both public and private law Children Act proceedings.

Here, he relates his experience of being the solicitor for Adam* and his brothers who wanted to meet the Judge who was going to hear their case.

Please be aware that reading some of the details in this story may be distressing.

 

*His name has been changed to protect his identity

This exchange was at a meeting at the Family Court when I took 11-year-old Adam and his brothers to meet the Judge who was going to hear their case.

I was the solicitor for the children. They had been removed from their parents care after the older children had made allegations that they had been physically abused by their parents. The children had said that they had been whipped with computer wires.

The child’s wishes and feelings

In making any decision about a child’s future, their wishes and feelings are a major consideration for the court. They are part of the welfare checklist that the court will review before concluding the case.

How are the children’s views relayed to the court?

Usually, the social worker and the CAFCASS officer will set out the children’s wishes and feelings in their reports. Sometimes, the children will write a letter to the Judge.

It has become increasingly common for older children to ask to meet the Judge. Over the past 18 months, such meetings have had to take place remotely. The Family Justice Council has produced guidance for judges who meet children during family proceedings. The guidelines are designed to encourage judges to enable children to feel more involved and connected to proceedings.

Key points from the guidance

* Such a meeting must be well planned and that everyone has to have a clear understanding of the purpose of the meeting.

* If a Judge decides to meet a child, it is a matter for the discretion of the Judge, having considered representations from the parties – (i) the purpose and proposed content of the meeting; (ii) at what stage during the proceedings, or after they have concluded, the meeting should take place; (iii) where the meeting will take place; (iv) who will bring the child to the meeting; (v) who will prepare the child for the meeting (this should usually be the Cafcass officer); (vi) who shall attend during the meeting – although a Judge should never see a child alone; (vii) by whom a minute of the meeting shall be taken, how that minute is to be approved by the Judge, and how it is to be communicated to the other parties.

* It cannot be stressed too often that the child’s meeting with the Judge is not for the purpose of gathering evidence.

* The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the Judge has understood him/her.

In the case of Adam and his brothers, at the final hearing the court decided that the parents had been responsible for the physical abuse on all their children.  The children remained in foster care.

The children’s voices had been heard loud and clear.

If you are affected by any of the issues raised here, please do get in touch. We’re here to help you.

McAlister Family Law ranked in Chambers and Partners

McAlister Family Law ranked in Chambers

McAlister Family Law ranked in Chambers

We are delighted to share the news that McAlister Family Law has been ranked in the renowned legal directory Chambers and Partners with several members of our award-winning team also being ranked for their individual expertise, and the practice itself described as comprising “really excellent lawyers – and they are great with clients.” 

Here we share our entry in Chambers:

What the team is known for

A boutique family firm with a growing presence in the Manchester market. Provides varied advice on both matrimonial finance and children matters, including public care proceedings. Regularly handles complex divorce settlements involving extremely high net worth individuals and multi-jurisdictional issues. Advises on matters surrounding complex business and inheritance structures.

Amanda McAlister

Managing partner Amanda McAlister retains her ranking as an “Eminent Practitioner” – an outstanding accolade.

She has deep experience in matrimonial finance cases, often taking on matters involving international clients as well as those that include complex pensions and trusts issues.

“She has bags of experience and super connections which she backs up with her knowledge of the law.”

Fiona Wood

Fiona Wood frequently assists clients with financial remedy proceedings and is particularly adept at advising on cases involving complex business assets.

“Fiona has excellent communication skills and is always excellent on points in cases; she is remarkable.” “Fiona Wood is a formidable, detailed and pragmatic lawyer.”

Nick Hodson

Nick Hodson has a respected family law practice. He is particularly noted for his expertise in public law children matters as well as private law proceedings.

“Nick Hodson is compassionate about what he does and always has the children at the centre of all cases. He is an excellent advocate and negotiator.” “He is well regarded in the public law children arena.”

Paul Webb

Paul Webb advises on a range of children matters including public law issues spanning multiple jurisdictions.

“Paul Webb is excellent. He is reliable, hard-working and very knowledgeable in family public law matters.” “He’s an extremely strong, well-rounded solicitor. He thinks of all the angles and all his cases are well prepared.”

 

Amanda said: “I am incredibly proud of this unbelievably talented and dedicated team of family lawyers. They are the very best.”

Do grandparents have legal rights?

grandparents rights

Do grandparents have legal rights?

When parents separate, disputes in relation to children of the family can not only include estrangement from a parent but extend to wider family members, particularly grandparents who can often be stuck in between parent’s arguments.

What can those grandparents do in such a challenging situation?  Partner Caroline Bilous explains.

Legally speaking, there are no grandparents’ rights, as usually grandparents do not have Parental Responsibility (all mothers and most fathers have Parental Responsibility, which refers to the legal rights and responsibilities a parent in respect of a child, the most important of which are to provide a home and protect and look after a child) in the same way as a parent might have, although they might acquire it if a parent is unable to care.

However, the Family Court recognises that it is in a child’s best interests to maintain good relationships with close family members, particularly grandparents, even if the parent of the child cannot, and as such, a court order called a Child Arrangements Order may be obtained to protect such relationships.

Do grandparents’ rights include the right to see a grandchild?

Grandparents do not have an automatic right to see a grandchild and above all, whatever the relationship between estranged parents, it is important to step back and try to avoid becoming involved in any disagreement, which is hard to do when it is your own child involved. Maintaining good relationships with the other parent goes a long way in avoiding difficulties further down the line.

Can a grandparent apply to the Family Court to see a grandchild?

Yes, but grandparents do not have an automatic right to apply to court to see a grandchild in the same way as a parent may apply to see and spend time with their own child. However, the Family Court would rarely refuse permission (or leave) for a grandparent to make an application, providing there is no good welfare reason why it should not, providing they can show a close and enduring relationship exists. Also, as a family member, permission is not required if a child has lived with a grandparent for a period of one year prior to the application being made.

How can I apply to see my grandchild if I’m being prevented from doing so?

It is important that early advice from an experienced child and family lawyer. Time can be of the essence and leaving matters too long can engrain difficult circumstances. Unless there are urgent circumstances, getting an initial court hearing will take a minimum of four weeks or more in any event, and as a first step, you will be required to attend upon a Mediation Information and Assessment Meeting (MIAM) to see if it possible to resolve matters with the assistance of a Mediator.

What orders can the Family Court make?

The court could make a Child Arrangement Order for a grandchild to spend time with a grandparent, in the same way as it could for a parent. Each family is different though and no two cases are the same. Just because you may have heard that one grandparent has obtained a certain order, it doesn’t necessarily follow that you will.

If you are affected by any of the issues raised here, please do get in touch. We’re here to help you.

Back to school – or not?

Laurence Fox back to school or not covid children

Back to school - or not?

Laurence Fox, who shares two sons, Winston, 12, and Eugene, nine, with ex-wife Billie Piper, has once again hit the headlines, this time in relation to the “anti-vaxx” row. He has claimed he will take his sons out of school should vaccinations be rolled out for 12-year-olds, saying he fears they will have the Covid jab without his permission.

The question is, can a parent remove a child from school in the first place?

Family Law Associate Melissa Jones looks at the options available.

There is no plan – as of yet – for children in schools to be vaccinated before they return to school in September. But were such a plan in place, would a parent be able to stop their children from going to school? Given that there is a central government policy stating that children must attend school, any parent stopping their child from doing so would be appear to be in contravention of this policy, and likely subject to fines.

Mr Fox appears to be suggesting is that he wants to de-register the children and home school them. To do so, he would need the other parent’s permission as they share parental responsibility (given that they were married to one another) and need to make important decisions like education in consultation with one another.

What is parental responsibility?

Parental responsibility is as per section 3(1) of the Children Act 1989 (CA 1989) which confers all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property.

What happens if you cannot agree on home schooling?

If parents cannot agree arrangements for their child or children in respect of their education, they can apply to court for a Specific Issue Order, and the court can address the issue of whether or not a child should remain at their current school or move to the other preferred school (in this case home schooling).

The court application

In the above scenario, if the other parent is strongly opposed to the change of school or home schooling, then they could apply to the court for a Prohibited Steps Order, which is an order that limits when certain rights and duties which can be exercised, such as making decisions about their education.

The court will consider the parents’ opinions and the best interests of the children. The children’s educational development, efficient home schooling techniques and underlying health issues in the family are some of the matters that will be considered by the court when deciding the issue.

Before making an application to the court,  it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to consider moving your child’s school, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move. With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

Given that children returning to school is imminent – some may have already started the new term – a parent may struggle to get an urgent court hearing, although it may be that the court fixes a date as soon as it can. In the interim, without an order or decision you will need to keep open communication with the other parent.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re here to help you.

Do I need my ex’s permission to take my children on holiday?

permission to take children on holiday

Do I need my ex's permission to take my children on holiday?

The schools are breaking up now for the summer, and as certain travel restrictions are being lifted, for some of us that may mean the excitement of travelling abroad on holiday.  But if you are separated from your child’s other parent, this can bring issues which need to be addressed with your ex-partner prior to any trip away, particularly if you’re considering holidaying in what is currently deemed to be an “amber” country.

Associate Therasa Kenny explains.

If there is an Order in place, usually a Child Arrangements Order (formerly a Residence Order) then a child can be taken abroad for up to a month without needing the written consent of the other parent.

Parental Responsibility

If there is not a court order in place, what first needs to be considered is whether you have parental responsibility.  If both parents share parental responsibility, then what is often overlooked is that you will need to get written consent from the other parent in order to take your child out of the United Kingdom (Section 13 (2) of the Children Act 1989).  Failing to do so could lead to you committing an offence of abduction for which you can be fined, imprisoned or both.

Should consent be unreasonably withheld, then an application to Court can be made.  The Judge will take into account the individual circumstances of each family, and if permission is given (which it often is) then specific travel details will need to be provided.  These will include the dates of travel, address details for where the child will be staying and any flight numbers.

The Court rarely denies permission to take a child on holiday abroad where there is an existing relationship between the parent and child and the plans are reasonable in all of the circumstances. Where they do, it is usually in circumstances where the plans are patently not in the child’s best interests or where the Court deems the child may not be returned to the country.

The child’s best interests

If only the mother has parental responsibility, and again there are no Court orders in place, then permission is not necessarily needed to take a child abroad on holiday.  That being said, and with your child’s best interests at heart, consultation should always take place with the other parent (if they are in regular contact with the child) in order to reach an agreement that is right for everyone.   As a father without parental responsibility, should you not agree to your child being taken abroad, you can apply to the Court for a Parental Responsibility Order and a Prohibited Steps Order to prevent the trip.

What if my children’s grandparents want to take them abroad on holiday?

Should other members of the family, such as a grandparent, wish to take a child abroad, then it is worth noting that permission will be needed from both parents who have parental responsibility, and not just from one.  Again, it’s really helpful if you can maintain good relationships with everyone in your extended family, but if that isn’t the case, then we recommend getting good legal advice well in advance of any proposed trip.

What if my child has a surname different from my own?

You also need to be aware that customs officers may insist on extra checks where a child is travelling with somebody who has a different surname to them. In these circumstances and in order to avoid any hold ups, it is always useful to take additional documents to the airport with you which can help to verify your child’s connection to you, such as the child’s birth certificate (which may provide the details of both parents’ surnames) and/or your marriage certificate (which will show the surnames before the marriage) and any existing court order and so on.

Open lines of communication

What is important is communication, and trying to agree any travel arrangements between you and the other parent in advance.  This is not always possible, but if it can be achieved, it will avoid any applications to the court being necessary.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Can I get custody of my children?

child custody

Can I get custody of my children?

It is not unusual in a family law case for a client to ask us “Can I get custody of my children?”

Partner and children law expert Ruth Hetherington explains.

Firstly, it’s important you understand that the concept of child “custody” no longer exists in English law and indeed has not done so since 1989. Having said that, we understand that many people undergoing separation or divorce think of looking after their children and having those children live with them in terms of custody. Since 1989 this has been known as Parental Responsibility, which is automatically acquired by a mother on the birth of a child, and by all married fathers, and all fathers whose names are on their child’s birth certificates.  

Many will ask us who will get custody or talk about sharing custody or want to know their rights regarding custody. The answer to this question is that, save in exceptional circumstances, both parents will retain Parental Responsibility during the child’s minority and the Court expects them to use this responsibility to decide with which parent the child will live, and how the other parent will spend time with them. We accept that when the media still reports that such-and-such a celebrity is going to court over child custody, or watch a film where one parent fights for custody of the child (Kramer vs Kramer being perhaps the most famous and enduring example of this), this confuses parents when separating.

Child Arrangements Order

The best arrangements are those that are agreed between the parents, and which suit their family’s own circumstances; as stated above, this is what the Court expects.

For those who can’t find a way to reach an agreement, that is, you and the other parent cannot agree where your children will live and when and how they will spend time with each parent – then you need to instruct a solicitor to apply to the Family Court for a Child Arrangement Order  so that each adult can spend time with and/or live with the child or children. But before you go down this path, we would urge you to first attempt mediation, which is where an independent third party will listen to both sides and try to help you, as a couple, reach an agreement.

The best interests of the child

The most important consideration of the Court, and one which you should keep in front of mind, is that it will always consider what is in the best interests of the child, as opposed to any perceived “rights” of any of the adults involved. The Court will determine the facts and decide upon what is in the child’s best interests. A “presumption of continued parental involvement” exists, but this should not be mistaken as a presumption of shared care, or even a guarantee of direct or indeed any, contact.  Rather it is an acknowledgement that parental contact with a child is assumed to be in a child’s best interests, providing of course there are no welfare issues why this should not be the case. The Court will determine the facts and consider the Welfare Checklist to help it decide upon what is in the child’s best interests. This Welfare Checklist includes things like the age, physical and emotional needs and wishes and feelings of the child, any harm which the child has suffered, or is at risk of suffering, and will consider the child or children’s age and maturity. In addition, the Court will also look at the capabilities of the parents to meet the physical and emotional needs of the child.

Shared care

One thing it is important to remember: there is a presumption of continued parental involvement by both parents, often referred to as shared care. It is worth bearing in mind that continued parental involvement does not mean a specific division of time: that is, it’s not necessarily a 50:50 arrangement. Again, we must stress that the Family Court will always look at cases on an individual basis, and the best interests of the children will always be at the heart of any and all decisions made. An order made by the Court is legally binding, which is why you should bear in mind that it may be more advantageous to come to an agreement outside of that Court system, so that you, and your ex, can agree a mutually beneficial, and considerate, system of flexibility so that you can both adopt an arrangement that allows for the sometimes unpredictability of real-life commitments.

 

If you are affected by any of the issues outlined here, please get in touch today. We are here to help you.

Can I move away from my ex, and take our children with me?

moving away from your ex and taking your children with you

Can I move away from my ex, and take our children with me?

It has often been said that some of the most contentious litigation occurs when there is a dispute over one parent moving away with the children in the face of opposition from the other parent.  Associate solicitor Paul Reay explains.

I want to move away with our children, but my ex opposes this

Irrespective of whether the proposed move is to another part of the same country, or to the other side of the world, the strength of feelings created are often the same. Whilst sometimes these moves can be agreed between the parents and appropriate arrangements made, more often than not, such cases involve parties whose positions are polar opposites; one who would wish to move and one who strongly opposes it.

Relocation, relocation, relocation

It goes without saying that to move to a different part of the country – or a new country entirely – will have significant consequences.  Take for example the case where two separated parents share the care of the child equally between themselves. This arrangement was most likely possible because the parents lived near one another.  If, however, a distance is established then the amount of time the children spend with each parent is inevitably affected. Even a move of only two hours’ drive away would most likely render the continuation of the previous arrangement impossible. The impact of such a move on the children would also be significant: they will need to become accustomed to living predominantly with one parent whilst spending time with the other during school holidays or at weekends, they will have to start a new school, make new friends – the list goes on.

Due to the fact that such cases have a grave effect on children, such cases are determined very carefully by the Court. In recent years, the Court of Appeal has considered a number or cases involving internal and external relocation and been required to assist – and at times remind – other judges and practitioners of the correct process to adopt when dealing with such cases. Further guidance was also provided in the decision in Re C [2015] EWCA Civ 1305. (https://www.familylawweek.co.uk/site.aspx?i=ed153303)

Having considered the Judgement of Lady Justice Black when determining the case of Re C [2015], it is I hope of use to anyone in this predicament that I highlight some of the important points raised within that Judgement: by doing so, if you are considering to relocate or in fact, trying to prevent someone from relocating, then I hope you will know what to expect from the Court.

Internal and external relocation – do they differ?

For a number of years, it was argued that cases involving one party relocating outside of the UK should be treated differently from those cases involving one party simply trying to relocate to another part of the UK. In Re H (children) (Residence Order) EWCA Civ 1338 [2001] 2 FLR 1277 (https://www.childreninlaw.co.uk/knowledgebase/re-s-leave-to-remove-from-jurisdiction-securing-return-from-holiday-2001-2-flr-506-fam-div-hogg-j/) Thorpe LJ postulated possible arguments for a different approach to be taken to internal and external relocation cases, yet could not find a particularly satisfactory foundation for it. A perfect example of why such an approach could cause problems can be found in the case of Re F (Internal Relocation) [2010] EWCA Civ 1428 [2011] 1 FLR 1382 (https://www.tandfonline.com/doi/abs/10.1080/09649069.2011.617074)  In this case, one party sought to move from the North East of England to one of the Orkney Islands. Although still within the UK, when looking at this move in further detail, such a move would be just as much, indeed if not more, of a geographical and logistical barrier as a relocation abroad. Put simply, it is easier to travel from Newcastle to Paris than it is from Newcastle to the Orkney Islands.

Black LJ concurred with the view of Thorpe LJ as she agreed that there was no justification to distinguish between internal and external relocation cases.

If the Courts do not differentiate between internal and external relocation, then what do they consider when deciding such cases?

Black LJ, in Re C has reaffirmed the position that ‘the welfare of the child is paramount’. In K v K (relocation: Shared Care Arrangement) [2011] EWCA Civ 793 [2012] 2 FLR 880 and Re F (Relocation) [2012] EWCA Civ 1364 [2013] 1 FLR 645 it was established that this was the only principle to be applied when determining an application to remove a child permanently from the UK, and it now appears that the same principle applies to cases involving internal relocation.

Child welfare is paramount

When considering child welfare, the Court will undertake a holistic balancing exercise, considering all aspects of the Welfare Checklist (Section 1 (3) of the Children Act 1989) even where it is not statutorily applicable. This exercise is not a linear one and may vary hugely case to case.

It is important to consider Black LJ’s full judgement in Re C, yet I feel it is rather refreshing that Black LJ made clear that child welfare is paramount and that the Welfare Principle in Section 1 (1) of the Children Act 1989 will dictate the result in internal and external relocation cases.

Having had experience in dealing with both internal and external relocation cases, I know first-hand that cases of such a nature are finely balanced and can often bring great sadness. There are no winners.

If after careful analysis, the Court find that it would be in a child’s interest to relocate to another part of the world or even part of the UK, then it is imperative that differences are immediately placed to one side and that the party who is relocating does all s/he can to ensure that any children involved can maintain their relationship with their other parent.

Right of contact

It should never be forgotten that the Right of Contact is the Right of the Child, and not the parent that they live with. It is always in a child’s best interests to have a relationship with both their parents, unless there are significant welfare concerns that would prevent the same. We are blessed that we now live in an age where we can sit and talk to a relative in another part of the UK or other country, face to face, by the click of a button using Facetime or Skype, or Zoom or whatever digital platform is available to you. I urge parents who may live many miles apart to take advantage of this technology and actively encourage their children to say hi to their dad using Facetime or to tell their mum about their day on Zoom, as to receive such calls for one parent will mean a great deal.

Are you contemplating relocation? Are you not seeing your children as often as you would like? At McAlister Family Law we have the experience, compassion and energy to achieve the best possible outcome for you. Please get in touch today. We’re here to help you.

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