The resurrection of relocation in the family law agenda

Posted: 17/11/2022

As with so many areas of life, Covid-19 brought with it unique challenges to family law. Throughout the pandemic we received enquiries from clients old and new about the prospect of relocating to either a different country, or a different part of this country. The restrictions imposed on us, and the impact of being isolated from family, were profound. A once constantly mobile world was brought to an abrupt halt. 

During the height of restrictions, and for some time afterwards, family lawyers were often hesitant to advise clients that they should embark on a relocation case. These cases are frequently finely balanced and come with a sense that there is ‘one shot’ to get it right. We were working in uncharted territory where it was difficult to predict how the courts would approach relocation cases, when countries were being graded with a traffic light system as to their safety for travel, and different parts of this country were subjected to different restrictions. In that environment, it was inevitable that clients would choose to hold back and wait for greater certainty before embarking on their application. 

The last few months have seen several interesting relocation cases, not least the case of VB & LB (Children) [2022] EWFC 60, which concerned an application by a mother to relocate with her two daughters, aged six and four, to the USA. The application was issued in March 2021 but, as so often happens with relocation cases, it took well over a year to reach a final hearing. This case was what is known as a ‘returning home case’: the mother, although a dual national, was born and raised in the USA. The father was British and had lived all his life in the UK. Both children had British and US citizenship.

In this case, although the mother wished to return to Boston, where she grew up, her family no longer lived there, although her parents had said that they would spend around three months of the year with the mother if her application to relocate was successful.

Crucially, the parents had previously reached an agreement, which was recorded in heads of terms drawn up by the mother’s solicitors, although without the father having received legal advice. They stated that they would relocate to the USA irrespective of whether they remained married or had found suitable employment. A move did not take place during the timeframe which was set out in the heads of terms, but the father did begin the application process for a visa which would entitle him to live and work in the USA, a process which he later halted.

It is not reported why the move did not take place within the original timeframe. However, what is clear from the chronology is that the mother’s application, made in March 2021, came after a year of Covid restrictions. It is inevitable that the inability to travel and the uncertainty of future travel will have impacted on the thoughts of all those who do not live in their home country. International families have been used to travelling with ease across the world unhindered, and have frequently made key decisions as to where they will live and work based on the unconstrained nature of international travel prior to Covid.

Some specialist family lawyers took the view that an unprecedented clamp down on international and domestic travel would have a long-term adverse impact on applications to relocate. The approach of the courts to date, however, has generally shown that they consider the onerous Covid restrictions that international families were subjected to unlikely to return again.

In the case of VB & LB, the mother was permitted to return home to the USA. The judge was persuaded by the fact that the mother and father were not that far apart in terms of contact proposals; proposals which are, of course, only possible now that international borders have reopened.

Relocation cases have always been some of the most challenging in family law. They are emotionally fought cases where it can feel that everything is to be won or lost. Covid brought with it further challenges to an already complex area, but it appears that the impact has been short-lived, and relocation cases can now be argued based on the assumption that international travel is back open for business.

It is essential that any application for relocation is well planned and researched. The family courts will expect to see detailed plans setting out how children will maintain contact with the parent they do not live with. Any plan should be meticulously considered and include detail of the children’s proposed school, local property, healthcare and how links with other family members such as grandparents and cousins will be maintained. 

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