A review of Parental Responsibility legislation in the U.K. and the issue of relocating children following divorce

In the latest edition of STEP Journal Plus, Tanya Roberts and Christina Pippas discuss what Parental Responsibly means in the U.K., the circumstances when Sole Custody is granted, the myths surrounding Sole Custody and the obstacles often faced with relocating once divorce and separation proceedings have been completed.

What does parental responsibility mean in the UK?

Parental responsibility (PR) is a situation in which an adult is responsible for the care and wellbeing of their child and can make important decisions for them. These might include decisions on accommodation, education and medical treatment. PR is essentially the rights, duties, power, responsibilities and authority that the parent of a child has in relation to the child and the child’s property.
It is important to note that a child’s mother automatically has PR for her child. If a child’s parents are married or in a civil partnership when the child is born, the other parent also has PR automatically. A father who does not automatically have PR can acquire it through a variety of means, including if he:

• is on the birth certificate;
• marries the mother or enters into a civil partnership with her;
• enters into a PR agreement with the mother and files it at court; or
  obtains a court order that gives him PR.

Step-parents, adoptive parents and guardians can also acquire PR.

When would sole custody be granted to a parent?

First, practitioners must be clear that there is no longer such a thing as ‘sole or joint custody’ in the UK; these phrases were historically superseded by ‘residence’ and ‘contact’ and were further superseded by ‘child arrangements’ in April 2014 by the Children and Families Act 2014 (which amended s.8 of the Children Act 1989). Many professional practitioners advise divorcees that making the right arrangements for the child following a divorce is vitally important. Central to this decision is a consideration of the child’s best interests (addressed in more detail below). In many cases, these arrangements can be agreed amicably, either directly between the parents or through the help of the parent’s solicitors or a mediator. On divorce, the court does not intervene in private law proceedings with the arrangements for the child unless it is formally asked to by way of a court application. However, if the separated parents cannot agree on who the child lives with or how much time they spend with the non-resident parent and the court’s intervention is required to assist with such a child arrangement, then a separate application will need to be made. The court can then make ‘child arrangements orders’, regulating who a child lives with. Any person with PR for the child, or anyone with whom the child has recently lived with for a period of three years, can apply for a child arrangements order.

Contrary to a common misconception, the court does not favour mothers over fathers. Instead, the court presumes that both parents will be involved in a child’s life and that this ‘parental involvement’ will further the child’s welfare, unless the contrary is shown. This presumption can only be displaced if there is evidence that a parent’s involvement would put the child at risk of suffering harm. Practitioners should, therefore, advise clients to work alongside the other parent to make suitable arrangements.

The court can order that the child lives solely with one parent or splits time between both parents. There are several types of ‘spends time with’ orders that can be ordered: direct and indirect, overnight and visiting, supervised and unsupervised. Where there are concerns about a child’s welfare, the court may order supervised arrangements; for example, at contact centres or indirect contact through a central visitation programme (CVP).

The court’s decision will depend on what it regards to be in the child’s best interests. Factors that the court is likely to take into account in determining this include:

• the child’s own wishes and feelings (particularly for older children);
• the child’s physical, emotional and educational needs;
• the likely effect on the child of any changes in circumstances;
• the child’s age, gender, circumstances and any other relevant background;
• any harm or risk of harm; and
• how capable each parent is of looking after the child’s needs (leaving aside the separate issue of who will provide financial support).

Obstacles to relocation

Following a divorce or separation, it is not unusual for a parent to want to relocate within the jurisdiction with a child. It may be that the parent wishes to be closer to their family or needs to relocate in order to find work, better schooling or to join a new partner who lives and works elsewhere. Provided the other parent does not object to the move and it does not significantly affect the child arrangements, this can be quite straightforward. In these cases, practitioners should advise that any agreement should be recorded in writing so that both parents are on the same page moving forward and any disagreements further down the line are avoided. If there is a court order in place, it may need to be updated by consent to provide for the new arrangements.

In a case where the other parent objects to the move, the parent with whom the child lives and wishes to relocate within the UK will need to seek permission of the court by applying for a specific issue order. To provide the court with the circumstances pertaining to the relocation, the applicant parent needs to produce a witness statement explaining the practicalities of the proposed move in detail, including proposed accommodation, childcare arrangements, suitable schools, how contact will be maintained with the other parent, and the reasoning for the move. The court will not look kindly on an application where it suspects the motivation is to frustrate time with the other parent. The statement must also explain how time with the non-resident parent will be maintained and what the effect (including emotional) of a refusal of the application would be on the parent wishing to relocate.

The parent opposing the application will also need to produce a witness statement with credible reasoning against the move. This includes the effect the move would have on their time with the child, the costs and difficulty of travel to maintain time with the child and the effect of allowing the application on them.

The court must perform a balancing act between a series of complex factors that come in to play before reaching a decision. In most cases, the court is unlikely to prevent a relocation within the UK unless it is required to do so for the child’s welfare. Indeed, when the court is considering such an application, its paramount consideration will be the welfare of the child and the outcome of the relocation application will be based on what is in the child’s best interest. Where there is more than one child, the court will consider each child’s welfare individually in light of their respective needs and so, although not common, siblings can be separated if necessary.

It is worth also noting briefly that if one parent wishes to locate abroad with a child, the steps required to be taken are similar to a relocation in England and Wales. The parent wishing to relocate will require permission of the other parent and anyone else with PR before they take the child abroad permanently, and if the other parent is not willing to give their permission, permission must be obtained from the court.

It is important to be aware that failure to follow the correct procedure may result in child abduction proceedings being initiated.

This article was first published by STEP Journal in August 2022 here.