UK Law and Practice Contributed by: Emma Post and Nicki Beale, NE Family Law
The application must be made in accordance with the Family Procedure Rules (FPR) 2010 and specifically Practice Direction 12B, which was amended following the new rules requiring the court to consider whether the case is suitable for non-court dispute resolution (NCDR) at each stage. There is an expectation that NCDR will be considered prior to the issue of pro - ceedings. In situations that give rise to an emergency situation, risk or removal, such steps are not required, but the protocol is generally expected to be followed in applications to relocate. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation The only legal principle applicable to an application to permanently relocate out of the jurisdiction of England and Wales is that the child’s welfare is the paramount consideration (Section 1 Children Act 1989). What Other Factors Are Considered? If an application is made pursuant to Section 8 of the Children Act 1989 – ie, when a child arrangements order is not already in place – the court must approach the question of welfare by reference to the “welfare checklist” set out in Section 1 (3) of the Children Act 1989. In practice, however, the welfare checklist is applied in either case and is considered a useful aide memoir on Section 13 (1) applications. The factors under the welfare checklist are: • the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding); • their physical, emotional and educational needs; • the likely effect on the child of any change in their circumstances; • the child’s age, sex, background and any charac - teristics of theirs that the court considers relevant; • any harm that the child has suffered or is at risk of suffering; • how capable each of the child’s parents, and any other person, is of meeting the child’s needs; and • the range of powers that are available to the court. The court has the ultimate discretion to apply the welfare checklist to the specific circumstances of the
case, and to weigh up the individual factors and make whatever decision it considers to be in the best inter - ests of the child’s welfare needs. See Re L (relocation: second Appeal) [2017] EWCA Civ 2121, [48], which also described a “balance sheet” approach, though this is to be used as no more than an aide memoir of the key factors and how they weigh up against each other as a route to judgment, as well as of the welfare evaluation and weight to be attached (or not, as the case may be) to the specific factors of the case. See also Re F (international relocation cases) [2015] EWCA Civ 882, [29], [52]. The 2010 Washington Declaration on International Child Relocation The 2010 Washington Declaration on International Child Relocation offers a list of factors, often cited by judges in England and Wales, in determining applica - tions for international relocation. Factors relevant to decisions on international relocation In all applications concerning international relocation, the best interests of the child should be the para - mount (primary) consideration. Therefore, determina - tions should be made without any presumptions for or against relocation. In order to more clearly identify cases in which reloca - tion should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors, listed in no order of priority. The weight to be given to any one factor will vary from case to case: • the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner con - sistent with the child’s development, except if the contact is contrary to the child’s best interest; • the views of the child, having regard to the child’s age and maturity; • the parties’ proposals for the practical arrange - ments for relocation, including accommodation, schooling and employment;
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