The consumer watchdog once strikes again.
Cases involving an application by one parent to relocate a child’s residence to a new location, which would invariably impact on the child’s time with the other parent, are commonly referred to as ‘relocation cases’. Even though these cases are given a label for convenience, they are determined by courts in the same way as any other parenting case.
The overarching principle is that the court must have the child’s best interests as its paramount consideration. Any parenting order that the court makes should also be reasonably practicable.
If the court finds that the parents should have equal shared parental responsibility for the child, it is then obliged to consider whether the child spending equal, or substantial and significant, time between the parents is both in the child’s best interests and reasonably practicable. Clearly, considerations of both equal time and substantial and significant time are not available to a court dealing with a proposed relocation of the child where each of the parents remains steadfast in living in a different location.
The court must consider each parent’s proposal including the advantages and disadvantages of the proposed relocation. It can also formulate its own proposal.
The parent wishing to relocate the child does not need to show ‘compelling reasons’ in support of the relocation, but must be able to produce evidence to convince the court that a parenting order involving a relocation of the child is in the child’s best interests.
Often a family report will assist the court in making a decision. That report will typically opine the advantages and disadvantages to the child of each parent’s proposal – that is a comparison of what life will look like for the child if they remain living in their usual place of residence, or if they relocate.
Although the overarching principle is always what arrangement will be in the child’s best interests, there are usually certain matters which will help inform the court in this process. Where a child is of a younger age the court will be particularly concerned with the needs of the child, even above their wishes. This is because a young child is generally below the level of maturation, experience and critical reasoning necessary for them to express a clear, objective view about where they would like to reside. For older children, their wishes will usually be given greater weight and consideration by the court, although the court is never bound to make orders that mirror the child’s wishes.
Whilst the court can allow or prevent the relocation of a child as part of a parenting order, it does not have the power to prevent the freedom of movement of a parent. The parent’s right to freedom of movement must ultimately defer to the child’s best interests.
The outcome of a relocation case will either leave the remaining parent aggrieved and with a strong sense of loss, or if the proposed relocation is blocked it can cause the other parent to feel a loss of life, career or relationship ambitions. In relocation cases where each of the parents have established, attached and loving relationships with the child and each parent has a strong demonstrated capacity to care for the child, the decision for the court will be a finely balanced one.
If you are considering applying to relocate your child’s residence, or the other parent is, you should contact us for legal advice at the earliest opportunity.