John Bolch on the difficult decision of relocation

Divorce|May 27th 2014

As any family lawyer will tell you, international child relocation cases are amongst the most difficult to deal with. Obviously, choices have to be made between parents in all disputes relating to children, but there is usually room for some ‘give and take’. However, where one parent is attempting to permanently remove the children to another country, thereby cutting them off from the other parent, it can seem like a stark choice between one parent and the other. Emotions naturally can run very high.

The parent wishing to relocate with the children to another country (often their original home country) must make an application to the court for permission to do so. Assuming the application is genuine they see the other parent’s objections as an attempt to restrict their freedom to make an important life choice, which could secure a better future for them and the children. The parent responding to such an application, however, sees themselves as possibly losing their children forever, particularly where the other country is far away. There can seem to be no room to manoeuvre, and the court is left with the unenviable task of deciding the matter.

In order to deal with that task the courts have, over the years, formulated a number of principles governing relocation applications. Those principles were summarised by Mr Justice Mostyn in the case TC and JC (Children: Relocation) last year. The overriding principle is, of course, that the welfare of the children is paramount. When considering that ‘welfare principle’ the court should ask itself and answer the following questions (assuming it is the mother who is making the relocation application):

  1. Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?
  2. Is the mother’s application realistically founded on practical proposals both well researched and investigated?
  3. What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
  4. Is the father’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
  5. What would be the extent of the detriment to him and his future relationship with the child were the application granted?
  6. To what extent would that detriment be offset by extension of the child’s relationships with the maternal family and homeland?

This guidance is not to be applied rigidly, and there is no presumption in favour of an application to relocate by a primary carer (as was once thought to be the case), although obviously the parent-child relationship will be taken into account.

These were the principles which guided the court in the recent case Re C (N, W & H). Here, the parents were originally from Brazil but moved to England in 2003, in the hope of improving their opportunity to earn money. Their marriage broke down in 2012 and the mother sought permission to remove the children permanently to Brazil. The judge at first instance concluded as follows:

“The dilemma here is that a move to Brazil will enhance the children’s life with their mother, who has been the main carer, but reduce the amount of direct contact with the father, with whom they have a strong bond. I agree with [the CAFCASS officer] that this case is finely balanced but I think the result I conclude is that the welfare of these children is best served by them remaining in the care of their mother, who has been their main carer throughout their lives, and moving with her back to her roots in Brazil where her increased happiness will be reflected upon them.”

The father sought permission to appeal against this decision. Permission was granted, but only on grounds relating to a criticism of the lack of weight afforded to the recognised importance of the children’s continued relationship with their father.

The father’s appeal was dismissed by the Court of Appeal. Lord Justice McFarlane concluded his leading judgment with a summary that says much about relocation cases generally:

“The consequences of this decision for the father are harsh and I well understand and respect the emotional impact upon him of the children’s departure to Brazil. These are important decisions and justify careful scrutiny if they come before this court on appeal. Having, I hope, applied such scrutiny to this case, I am entirely satisfied that the judge did give adequate regard to the detriment that will be caused to the children’s relationship with their father if they move to Brazil. That factor was at the centre of the case. That was why the case was “finely balanced”. The judgment shows that the judge decided to give greater priority to the other pressing factor, namely the mother’s need to go home to Brazil, and the impact of a refusal on her ability to continue being an effective parent to the children”

I have commented here before about the difficult decisions that our family courts have to take every day. International relocation cases are another example that belong on that list.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Important family law cases: Payne v Payne by John Bolch - Marilyn Stowe Blog says:

    […] I have said here before, international child relocation cases are amongst the most difficult for a family lawyer to deal with, having the possibility of […]

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