A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Traditionally, a parent wishing to relocate to another part of the country could usually do so, unless “exceptional circumstances” existed. Where a parent wanted to relocate abroad, the consideration was very different. In these circumstances the Court would have to weigh up a number of factors concerning the parent who wished to move, their motivation for moving and the effect on both parents (and of course the child) if the move did or did not take place.
More recently, we have seen the two strands of case law move closer together with international relocation cases placing less emphasis on existing guidelines, while internal relocation cases appear to have now dropped the ‘exceptionality’ requirement.
It now appears that the two strands are intertwined with one another, and a common approach has all but emerged. So what is the common approach and how should such applications be considered?
At the outset, when considering either an internal or international relocation, a primary consideration will be the welfare principle . The welfare principle essentially means that a court will order whatever it feels is best for the child. When considering the welfare principle, the Court will carefully consider the child's wishes and feelings as well as their interests. Having done so, they will still (in appropriate cases) consider the historical checklist but only as part of the overall balancing exercise.
In reality, it is likely that the Court will look positively upon both internal and international relocations which are requested by a primary carer provided it is well thought out, they have made reasonable proposals for the child to see the “left-behind” parent and there are no welfare grounds that concern the Court. That said, the Court will be loathed to make orders allowing such relocations where the move was motivated by malice or would otherwise significantly disrupt the relationship between the “left-behind” parent and the child. It is likely that where such applications are successful, robust and extensive contact requirements will be ordered by the Court, with safeguards attached to those orders to ensure the relationship to be maintained.
If you have any questions arising from the issues discussed in this article, please contact Chris Lloyd-Smith.
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Family team partner, Elizabeth Wyatt, is delighted to congratulate Kadie Bennett for attaining Resolution Specialist Accreditation in both children law - private and complex financial remedy matters.
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