The effect of Covid-19 on divorce law: separated parents moving house
By Sarah Harvey, associate in Stewarts Leeds divorce and family team
With remote or hybrid working becoming commonplace, many workers no longer need to worry about commuting regularly, if at all. Some are now reconsidering the pros and cons of where they live. The property market remains buoyant thanks partly to individuals and families relocating from cities to greener pastures, where they can afford larger properties at a more affordable price than in metropolitan centres.
It is safe to assume many will look North when eyeing up a new place to live, especially if they are prioritising value-for-money housing. For a separated parent, there’s more to worry about than good schools and transport links: they also have to consider the legal implications of moving house with a child or children.
Do I need permission to move away from my child’s other parent?
‘Internal relocation’ is the term used for a parent or parents relocating a child from one part of the UK to another. If you are divorced or separated and are named in a child arrangements order (CAO) as a person with whom the child is to live, technically you do not need the permission of the child’s other parent to relocate within the UK in the same way you would if you were moving abroad. However, you must still be able to comply with shared care arrangements.
There are practicalities to consider: as a relocating parent, you will need to get permission from the other parent for the child to change schools. If the other parent says they have a problem with you moving a much greater distance from them, there are likely to be problems in the co-parenting relationship. Getting the consent of the other parent, or otherwise obtaining the court’s permission, is therefore almost always advisable when moving house.
Getting permission from the court
Child welfare and their ‘best interests’ will always be the court’s paramount consideration and in 2015 the court established there is no difference in the basic approach between parents moving within and outside the UK.
In no strict order, factors considered when determining a child’s ‘best interests’ include:
- any harm the child has suffered or could be at risk of suffering
- the child’s physical, emotional and educational needs
- how any change in circumstances will affect them
- their age, sex, background etc.
- how the child feels about their living situation (dependent on their age)
- the ability of each parent to care for them
While there is no presumption in favour of the parent applying to relocate, the potential effect of refusing permission for the applicant can also carry weight. The court will always consider whether there is genuine motivation for the move, or if it is being done as a means of preventing the other parent from seeing their child. The potential disruption to contact with other family members will also be taken into consideration.
Ultimately, a judge presiding over a relocation application must determine what is in the child’s best interests. The consideration of the welfare test requires a holistic balancing exercise. The court must balance all the relevant factors (which will change from case to case), weighing those factors against each other to determine which outcome most serves the child’s welfare.
How has Covid-19 affected rules around relocating?
A case from 2021 confirmed that regardless of the surrounding circumstances, even an unprecedented global pandemic, child welfare will always be paramount when parents relocate within the UK.
The application concerned a girl aged three and a boy aged nine; the boy had been diagnosed with autism. The children’s parents separated in 2017, and shared childcare in London between them. When the country went into lockdown in March 2020, the father agreed the mother and children could temporarily move to the countryside, where there would be more space for the children to enjoy.
By the summer of 2020, the mother had decided she wanted to remain there permanently, partly because of her new partner living nearby. When she made her court application, the father opposed it as he wanted to maintain close connections with the children and was unable to relocate due to work commitments.
This case was unusual as it dealt with the two children differently. The father agreed the girl should remain with her mother and spend “as much time as possible” with him, but the court decided to minimise disruption to the boy by ordering he return to London. This meant he could stay at the primary school he had attended since reception.
Weighing all the circumstances of the case against the welfare checklist listed above, the judge decided that the balance came down firmly in favour of the boy living with his father and spending “as much time as possible” with his mother and sister.
This case confirms the importance placed on child welfare, even if it means one sibling living with their father and the other with their mother.
The judge was uneasy about separating the boy and girl, but the order provided for them to spend every weekend and all their school holidays together, even amidst the ‘stay at home’ Covid-19 guidance.
Adrian Clossick, partner and head of the Leeds divorce and family team at Stewarts, said this about internal relocation: “How a relocation application is presented to the court can be crucial to its success. The court’s paramount consideration must be the welfare of the child. That is deceptively simple. It will require a judge to carefully weigh up several factors before coming to a decision that will undoubtedly be life-altering for the family. Preparing a clear, detailed application focusing clearly on the child or children gives a parent the best possible chance of success.”