Steven Wade is a family law advisor (McKenzie Friend) with nearly 20 years of experience helping people represent themselves in court. Having been through the system personally and supported thousands of others since, he knows what it’s like to face the stress, confusion, and pressure of doing it alone. This blog shares practical insights that empower you to take control of your case — without the legal jargon or the hefty solicitor’s bill.
Can I move away with my child?
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Can I move away with my child?
- Introduction
- Why do parents move away?
- What does the law say if I move away with my child?
- What is `habitual residence’?
- What if I need to move but my ex doesn’t want that to happen?
- How do I move away my child when my ex partner doesn’t agree?
- What if I just move away anyway?
- What do you do if your ex is planning to or does move away with your child?
- Conclusion
Introduction
Relationship breakdown usually causes a change in living arrangements. That change will of course affect any children of the relationship. Typically it’ll involve one of the partners moving out, sometimes with the children. In some situations this is by agreement but in other cases it is done against the wishes of one parent, sometimes without notice.
In an ideal world the best interests of the children are served by changes that are minimal and agreed between by their parents but that isn’t always the case for a variety of reasons (see below!)
Why do parents move away?
There are a whole host of reasons why a parent chooses to move away with their child! These include wanting:
- A fresh start
- To move to an area with a bigger support network (friends, family, etc.)
- To feel safer from an abusive ex partner.
- An affordable home in a cheaper area.
- To put distance between their ex partner and the children.
- To live with a new partner.
- To move closer to their job or schools.
Among these reasons some are child-focused ones while others are less so. Some are entirely avoidable while others – again – are more of a choice. Others are a somewhat less of a choice – such as needing to move to a new home following a financial settlement.
Again – the primary consideration for everyone involved should be the long term best interests of the children. And again, as always – communication with an ex partner and actively working with them to make things as child-focused and amicable as possible is always the best option for all concerned.
Of course, this can be especially hard at a time when people are at their most emotional.
What does the law say if I move away with my child?
The answer is `it depends’.
Anyone with PR (Parental Responsibility) is entitled to move a child within the jurisdiction they are habitually resident in without consulting any other holders of PR) unless there is court order that forbids them from doing so – often something like a prohibited steps order.
Assuming you’re in the UK those jurisdictions are:
- England and Wales (these are one jurisdiction).
- Scotland.
- Northern Ireland.
Each of these jurisdictions are distinct areas, each with their own laws and their own courts.
So someone living in England or Wales can move the children anywhere they like within England or Wales – but not across the border into Scotland or across the Irish Sea to
North Ireland. The UK is not one jurisdiction so children can’t be moved around it. They also cannot be moved out of it.
So if you live in England or Wales you can’t move your children to Aberdeen, Amsterdam or Australia without the consent of all other holders of PR or a court orders saying you can.
What is `habitual residence?’
Children are deemed to be `habitually resident’ in one of them. Habitual residence is usually the place someone (including a child) spends most of their time, is settled and plans to remain for the forseeable future. There is no set time frame for how long someone has lived in a jurisdiction (along with multiple factors including links to areas, family, friends, schools, work, culture, etc.) but as a general rule of thumb – the longer someone has lived somewhere the more likely a court is to agree someone is habitually resident or not.
For example – a child that was relocated to a new jurisdiction is unlikely to be considered habitually resident within a few weeks.
If there is any disagreement about habitual residence a court will decide if it has the authority to make an order with respect of a child (or an adult). For example – an application issued in an English court regarding a child that now lives in Scotland will need to satisfy itself whether the child is habitually resident or not before it does anything else at all.
If this happens, you will need to convince the court that the jurisdiction you feel your child is habitually resident in is indeed the correct one.
What if I need to move but my ex doesn’t want that to happen?
Your ex doesn’t have the power to stop you moving. You are free to move anywhere in the world you choose without asking or telling them.
It may be in your children’s best interests to stay in the same home/area even though you need to go elsewhere. Which means a possibility is that the children remain with your ex partner while you go to where ever you need to go.
Children need stability and routine. One of the factors that makes this up is remaining with their primary carer. Another is staying in a familiar environment they have links with that includes friends, family, a social life, activities, their culture, etc. Which means in situations like this the pros and cons will need to be weighed up.
In situations like this the best case scenario can sometimes be that you remain in the same area where ever possible.
But…it’s not always possible.
How do I move away my child when my ex partner doesn’t agree?
As always – if you can agree what is best for your children with your ex partner you can do whatever you like. You don’t need the permission of the court or anyone else to do this.
And again, as always the absolute best case scenario is to speak to your ex partner to come to an agreement. The best outcome for your children is to see their parents working together in their best interests. And even more so, if there is agreement there is less likely to be bad feeling and possibly future legal action when one of your decides you can’t tolerate what has happened and you feel you have a better chance of getting what you think is best for the children in court rather than your ex partner.
If you can’t come to an agreement between you, mediation is a good alternative.
In short, a mediator will `referee’ your disagreement, give things a more neutral spin, help you find common ground and take help you come to an agreement without the need for an avoidable costly, unpleasant and stressful court case.
There is nothing stopping you just moving without your ex partner’s agreement or knowledge. But it is seldom a good idea to do this.
Other than immediate safety concerns, you should not do this. If you do have safety concerns you may need a Non Molestation and/or a Child Arrangements and/or Prohibited Steps Order which can do a lot to address the concerns you may have – without uprooting children from an area they may consider home.
What if I just move away anyway?
People do this. In some cases non primary carers find out when they go to collect the children for contact and find an empty house. Or contact is stopped. Or they’re told `I’m moving away and you can’t stop me’.
A parent doing this will likely `get away with it’ in the short term at least – often up to the point that a non primary carer will take the matter to court, asking for an order that the children be returned to their home.
If you do this, you risk being told you have removed the child from their home, family, friends, school, social life, etc. without good reason and demonstrating you are hostile or thoughtless towards your ex partner. Your children may be distressed by this too.
It is an inadvisable strategy.
What do you do if your ex is planning to or does move away with your child?
If you’re the parent who has come to collect the children and found an empty house or been told the children being relocated regardless of your opinion you have two options.
- Do nothing.
- Take the matter to court.
The clock is ticking the moment your children are relocated. Your ex partner may have planned this and has enrolled the children in a new school, registered them with a new doctor, decorated new bedrooms in a new home that is a long distance from you. They will likely use these facts in a hearing to demonstrate the children are now settled and your seeking their return would only provide further disruption to do so – so the quicker you act, the easier.
If your children are relocated (or you have credible evidence that this is likely to happen) you may need an emergency hearing to resolve matters as soon as possible. That means turning up at court with the correct paperwork and fee to ask to see a judge that day. If that happens, expect to be told the courts are busy (they are) and you may be waiting all day (you may do) to see a judge who isn’t impressed that you’ve attempted to leapfrog your way into court (he/she may have a point if you don’t have good grounds to do so).
If you post the forms off or just tick the box on the relevant form before sending them to court…the clock continues to tick. You better hope the court will see it as urgent as you do (this is unlikely) and that things get addressed promptly.
At the same time you need to ask yourself what your plans are if your children are relocated. Are you willing to accept a changed contact schedule taking into account the increased distance? Are you willing to relocate to the new area your children may be living in?
Be ready to have answers to all these questions.
The sad truth is that it is easier to stop a child being relocated than it is to get them back – so if you have clear, well-founded evidence that this is going to happen you need to consider the appropriate course of action is.
Conclusion
In an ideal world, a child’s life should be disrupted as little as possible after his or her parents separate. Parents separating can be traumatic for a child on its own. Throw in a new home, a new school, new partners, new situations and a new location and it’s even harder.
As a loving parent you will want the minimum amount of disruption for your child. Some is unavoidable. But some is. Your child’s best interests are always at the forefront of your mind and at your ex partner’s new – it is just likely that you have different visions of what that looks like or how you practically implement it.
Moving a child should be the `least worst’ option open to a parent – not a `go to’ and ideally something to be agreed with your child’s other parent.
This post is for informational purposes only and does not constitute legal advice.
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