If one parent wishes to relocate with their child, either abroad or to another part of the country, they must obtain the consent of the other parent or permission of the court (assuming they both have parental responsibility for the child). If the other parent does not consent to the proposed relocation, the parent wishing to relocate must make an application to the court to decide the issue and this is often an extremely finely balanced exercise. Under Family Law, the outcome of relocation cases is also binary; either the parent will be permitted to relocate by the family court or they will not and the outcome will have a significant effect on both parents as well as the child.

Applications for relocation

When considering a relocation application or seeking permission to relocate with a child, the family court must have regard for the welfare checklist. This will include consideration of the motivations of both parents, the impact on either parent of the application being granted or refused and whether the application to relocate has been well researched and investigated.

In a relocation case, the amount of time that the child is currently spending with each parent is relevant. The court will want to know more about parental responsibility. Specifically, how the parent wishing to relocate will promote the child’s relationship with the other parent, and what the spending time arrangements would look like following a relocation. The child’s best interest is at the core of the decision-making process.

Also Read: Child Abduction: Getting Your Child Back After Ex-Partner Took Them To Another Country

Shared care for equality in parenting

There has been an increase in shared care arrangements over recent years, as the law moves towards greater equality in parenting. There is no legal definition of ‘shared care’, however for the purpose of this blog, it is being used to describe certain child arrangements which involve the child spending a roughly equal amount of time with each parent.

Relocation will, in most family law cases, mean that the child is no longer able to spend the same amount of time with the left-behind parent. Therefore, the effect of relocation where the child has been spending a similar amount of time with each parent is even more marked and will have a significant impact on both the nature and quantity of time that the child will spend with the other parent. For this reason, it is likely that child relocation applications will be more difficult in circumstances where a shared care arrangement is in place. Further, as a part of a child arrangements order, parents may be deterred from making such applications – which are often costly and time-consuming – if the prospects of success are lower.

Also Read: Parental Responsibility for Fathers

How does the family court decide

However, it is important to note that different criteria do not apply in shared care cases. In Re L (a child) (internal relocation: shared residence order) [2009] EWCA Civ 20 the Court of Appeal emphasised that the fact of a shared residence order will be an important factor, but it is not a trump card preventing relocation. In each case what the court has to do is to examine the underlying factual matrix, and decide in all the circumstances of the case whether or not it is in the child’s interest to relocate with the parent who wishes to move.

Also Read: Compensation for Neglecting Child Support

Victoria Rylatt is a Senior Associate Solicitor at Anthony Gold. She specialises in the Family and relationships department, based in our South London offices at London Bridge.

Victoria practices in all areas of private family law, including divorce, dissolution, financial and children arrangements. Contact her on victoria.brown@anthonygold.co.uk .

An issue which commonly arises within financial remedy proceedings is whether money advanced by a family member is a gift or a loan and, if it is a loan, whether it is to be treated as a ‘hard’ or ‘soft’ liability. If it is considered a soft loan, the amount may be left out of the court’s calculation of the parties’ liabilities and therefore the net effect of the final outcome. There is no statutory definition of a soft loan, however case law provides extremely helpful guidance.

In the recent case of P v Q (Financial Remedies) [2022] EWFC B9, HHJ Hess provided extremely useful guidance. Firstly, in terms of the distinction between gifts and loans, HHJ Hess stated that, as a matter of general principle, for an advance of money to be a gift there must be evidence of an intention to give. If it is determined that the advance was a loan, the court must determine whether it is to be treated as a ‘hard’ or ‘soft’ loan.

How does the court decide if it is a Hard or soft loan?

Having considered a number of authorities on the issue, HHJ Hess derived the following principles which should be applied when a court is considering whether a liability is a hard or soft obligation:

(a) Once a judge has decided that a contractually binding obligation by a party to the marriage towards a third party exists, the court may properly wish to go on to consider whether the obligation is in the category of a hard obligation or loan, in which case it should appear on the judges’ computation table, or it is in the category of a soft obligation or loan, in which case the judge may decide as an exercise of discretion to leave it out of the computation table.

(b) There is not in the authorities any hard or fast test as to when an obligation or loan will fall into one category or another, and the cases reveal a wide variety of circumstances which cause a particular obligation or loan to fall on one side or other of the line.

(c) A common feature of these cases is that the analysis targets whether or not it is likely in reality that the obligation will be enforced.

(d) Features which have fallen for consideration to take the case on one side of the line or another include the following and I make it clear that this is not intended to be an exhaustive list.

(e) Factors which on their own or in combination point the judge towards the conclusion that an obligation is in the category of a hard obligation include:

1. the fact that it is an obligation to a finance company
2. that the terms of the obligation have the feel of a normal commercial arrangement
3. that the obligation arises out of a written agreement; (4) that there is a written demand for payment, a threat of litigation or actual litigation or actual or consequent intervention in the financial remedies proceedings
4. that there has not been a delay in enforcing the obligation; and
5. that the amount of money is such that it would be less likely for a creditor to be likely to waive the obligation either wholly or partly.

(f) Factors which may on their own or in combination point the judge towards the conclusion that an obligation is in the category of soft include:

1. it is an obligation to a friend or family member with whom the debtor remains on good terms and who is unlikely to want the debtor to suffer hardship
2. the obligation arose informally and the terms of the obligation do not have the feel of a normal commercial arrangement
3. there has been no written demand for payment despite the due date having passed
4. there has been a delay in enforcing the obligation; or
5. the amount of money is such that it would be more likely for the creditor to be likely to waive the obligation either wholly or partly, albeit that the amount of money involved is not necessarily decisive, and there are examples in the authorities of large amounts of money being treated as being soft obligations.

(g) It may be that there are some factors in a particular case which fall on one side of the line and other factors which fall on the other side of the line, and it is for the judge to determine, looking at all of these factors, and maybe other matters, what the appropriate determinations to make in a particular case in the promotion of a fair outcome.

The assessment of whether a loan is hard or soft is therefore a discretionary exercise and will turn on the facts of each case, having applied the above principles.

If you require assistance in respect of financial arrangements on divorce or have any queries regarding the treatment of loans within financial remedy proceedings, please do not hesitate to contact us.

Victoria Brown is a Senior Associate Solicitor in the Family team, who practices in all areas of private family law, including divorce, dissolution, financial and children arrangements. If you would like to discuss these issues please contact her at vgb@anthonygold.co.uk or on 020 7940 4060.

Summer is a popular time of year for travelling abroad, to spend the school holidays with friends and family living elsewhere in the world or simply to escape the office and the unpredictable British weather! However, for separated parents wanting to travel with their children, there is more to think about than which flight to book and what to pack, so it is very important that you start making plans early.

Jump to the relevant question in your case:

1. Do you have the consent of all persons with parental responsibility?
2. Do you have a court order/ child arrangements giving you permission to travel?
3. Is the consent/court order conditional?
4. What are the legal requirements of the country you are travelling to?
5. What are the covid-19 travel restrictions in place for the country you are travelling to/returning to?

Do you have the consent of all persons with parental responsibility?

You will need the consent of all persons with parental responsibility unless you have a court order giving you permission (see below).

Parental responsibility means having all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his property.

Mothers automatically have parental responsibility. Fathers automatically have parental responsibility if they were married to the mother at the time of the birth or (for children born after 1 December 2003) they are registered on the birth certificate. Fathers can also acquire parental responsibility by way of a parental responsibility agreement, or court order.

If you are not the only one with parental responsibility and you travel abroad with a child without the other’s consent then this constitutes child abduction and is a criminal offence, (unless this is to Scotland, Wales or Northern Ireland). So it is important to ensure you have their consent before you travel.

Do you have a court order/ child arrangements giving you permission to travel?

If you do not have the consent of all persons with parental responsibility then you will need to apply for a court order giving you permission to travel, if you do not already have an order in place.

You can apply for the following orders: –

• A child arrangements order stating that the child lives with you. This will enable you to take the child abroad for up to 28 days without consent, unless there is a separate order that prohibits this (known as a prohibited steps order). However, where it has been made clear that someone with parental responsibility objects to you going abroad with the child, it is best practice to apply for a specific issue order even if you already have a child arrangements order in place.
• A specific issue order giving you permission to remove the child from the jurisdiction for a holiday, known as an application for temporary leave to remove.

Both orders can be applied for using the Form C100 and will be decided by the court in the best interests of the child in accordance with the welfare principle and welfare checklist, which takes into account the wishes and feelings of the child, their needs, their age, sex and background, the impact of any change in circumstances, any harm they are likely to suffer and how capable each parent is of meeting their needs. These proceedings can take several months so it is important to know at an early stage whether consent will be forthcoming or if a court application may be necessary.

Is the consent/court order conditional?

It is common for consent or permission to be given on certain conditions.

These can include:

• Providing the other parent with full details of the planned holiday a certain number of days/weeks/months in advance e.g. dates of travel, flight or other travel arrangements, accommodation and contact details, who else will be travelling with you, and the reason for the trip.
• Only allowing travel to certain countries e.g. countries which are a party to the Hague Convention, where it is easier to secure the return of a child unlawfully removed/retained, or for a certain number of days.
• Specifying the arrangements for handing over/returning the child’s passport.
• Making alternative arrangements for the children to spend time with the other parent, if the holiday spans time when the children would otherwise have been with the other parent in accordance with child arrangements previously agreed or ordered.
• Indirect contact (via Skype, or FaceTime) with the other parent whilst away, for example on days when they would otherwise have spent time with the other parent if at home, or on special occasions such as birthdays.
• In some cases, providing the other parent with some form of security in the event that you do not return as promised e.g. payment of money into court, or handing over certain documents (e.g. your birth certificate), that will only be returned once you are back in England.

You should consider these things when seeking consent or permission, and ensure you have as much information available as early as possible regarding your proposed trip.

What are the legal requirements of the country you are travelling to?

Each country has different requirements for allowing a child to travel abroad without both parents.

For example, if you wish to travel to South Africa or Canada then you will need a signed parental consent affidavit (South Africa) or letter of authorisation (Canada) from the other parent and a court order granting the parent wishing to travel full parental rights and responsibilities and permitting them to take the child on holiday without the other parent.

If you have been able to deal with the child arrangements between you directly to date, and therefore do not already have a court order in place, then this means going to court specifically for an order by consent, which can be frustrating, costly, and time-consuming. So it is important to check the requirements of each country far in advance of your proposed trip.

What are the covid-19 travel restrictions in place for the country you are travelling to/returning to?

You will now also need to check the rules for travelling with children in the country you are travelling to and from, including whether there is a requirement for each child to be vaccinated or whether a negative PCR test is required.

If vaccination is a pre-requisite for travel, and your child is not already vaccinated, then you will need to get the consent of all persons with parental responsibility before vaccinating. If this consent is not forthcoming then you will need to apply for a specific issue order seeking permission for the vaccination to be administered.

Again, this specific issue order can be applied for using the Form C100 and will be decided by the court in the best interests of the child in accordance with the welfare principle and welfare checklist. These proceedings can take several months so it is important to consider this at a very early stage and ensure all necessary orders are sought at the same time, if an application to court is necessary.

Last but not least, don’t forget your passports (and any other necessary documents).

Make sure that you have your passport and your child’s passport before you travel. This might mean arranging a time to collect your child’s passport from the other parent in advance, if it is not already in your possession.

You may also need proof of vaccination, a negative PCR test, and/or a passenger locator form, depending on the location of travel.

It is also advisable to travel with a copy of the child’s birth certificate, particularly if your child has a different surname to you, as well as any documentation evidencing any change in your name e.g. your birth certificate, marriage certificate, decree absolute or change of name deed.

If you are considering travelling abroad with your child, during the summer holidays or any other time of the year, it is important that you consider the need for legal advice at an early stage. If consent is required, but not forthcoming, then you should try to resolve matters in mediation before applying for a court order. This will give you an opportunity to discuss the proposed trip in more detail and hopefully reach an agreement that enables you to travel. However, if time is of the essence or it is clear that no agreement will be reached, then it may be best to issue proceedings straight away.

At Anthony Gold we are experienced in dealing with all aspects of family breakdown, including arrangements for children and the need to seek consent or permission from the court to remove a child from the jurisdiction temporarily, or permanently. If you think you may require legal assistance a member of our family team can advise you in more detail on your options and agree the best course of action for your specific circumstances.

At Anthony Gold, we know that any divorce is stressful and that there are a number of things to think about. The process of getting a divorce will be just as much practical as technical, especially if there are children. Below is a checklist to consider when going through the separation process.

Divorce checklist

Money

In relation to the finances, some of the tasks will be set out in the court order that is drawn up. For example, how to deal with the ownership of property, bank accounts, investments, pensions and debts. However, there are other important practical points to consider which are included in the following non-exhaustive checklist:

1. Agree if any maintenance/works needs to be done to a property and agree costs before the spouse moves out (eg. roof or boiler repair)
2. Check and/or change any beneficiary nominations under your pension
3. Check and/or change the nomination under any death in service benefit from your spouse to an alternative beneficiary
4. Close or transfer joint accounts to sole name or open a new bank account if needed
5. Close any joint credit cards
6. Check life policies and change the beneficiary if appropriate
7. Check medical cover for or as a spouse and whether it covers you both after separation and up to decree absolute
8. Change any key passwords and separate financial paperwork/ID docs
9. Notify DVLA and car insurer if you are moving
10. Notify banks/pension providers of new address
11. Notify vet and insurer if pets relocate address and amend microchip details
12. Notify GP of change of address
13. Apply for single person’s council tax
14. Change utility bills
15. Check what benefits you may be entitled to
16. Consider if a change of name is necessary to ID documents
17. Change locks to a property once ownership transferred
18. Redirect post
19. Change your Will or make a Will
20. Amend or make a new Power of Attorney

The Children

You do not have to obtain a Court Order or even draft an agreement in relation to how you will care for your children. Although you may find written agreement helpful. Here is a checklist of practical items you may wish to consider:

1. Notify childminder/nursery/school of any address change/contact details and status of parents’ relationship and ensure documents are copied to both parents if possible
2. Notify childminder/nursery/school of who will pick up and drop off the child and when
3. Purchase new sets of clothes/uniform/shoes/toys/books/medicine so that both homes are equipped if something is forgotten
4. Agree any medical/health/allergy treatment that may be necessary (eg asthma inhalers) and when that is to be administered
5. Agree on the GP and dentist to be used
6. Work out dates/holidays/special occasions with reference to a calendar and who will hold or attend parties
7. Work out if parents’ evenings/school events are to be attended separately, together or alternately
8. Agree contact with grandparents and wider family members if they are to provide a caring role
9. Consider using a parenting app such as “Our Family Wizard” or paper diary if communication is difficult

If you are thinking of separating, you should always take legal advice as to the implications, risks and protections you should put in place. If you would like further information, please contact the family team at Anthony Gold LLP at mih@anthonygold.co.uk.

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