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Child relocation: the hardest decision

“It is my opinion that outside the sphere of State intervention for the purposes of child protection, the hardest decision that a judge ever has to make in the field of family law, or, for that matter, in any field, is a relocation decision. The choices are starkly binary. One or other parent will lose and will be bitterly disappointed. There is no scope for finding some comfortable middle ground.”

So said Mr Justice Mostyn at the outset of his judgment in NJ v OV. His comment does not, of course, come as any surprise – I have myself previously said that international relocation cases are amongst the most difficult to deal with. I, however, do not have to deal with them.

NJ v OV concerned the future of a girl, ‘B’, who is now approaching her fifth birthday. Her mother was born in Sweden and her father was born in England. They met in England in 2007 and lived together in London after B’s birth. However, by 2011 problems were developing in their relationship. In July 2011 the mother and B went to Sweden for an agreed holiday. She did not return with B at the end of the holiday and the father issued an application for the return of B under the Hague Convention. The application was granted by the Swedish court and the mother and B returned in January 2012.

In May 2012 the mother issued her application for permission to relocate with B to Sweden. The application was not heard until November this year, the delay being due to what Mr Justice Mostyn called an “attritional war” that the parents had engaged in about B, with the father making numerous allegations about the mother’s care for B and the mother breaching the agreed contact regime and also insinuating that the father had neglected B.

The mother’s case was that she believed that in Sweden she could offer B a far superior way of life compared to that which she could provide here, and she also felt isolated here, whereas she has family in Sweden. Her application was strenuously opposed by the father.

Dealing with the application Mr Justice Mostyn of course examined and considered all of the evidence. In particular, he found that the mother’s proposals in relation to the proposed move to Sweden were realistic and well-researched. He thought that a return would bring a welcome stability and security into her life and would give her a sense of purpose and of responsibility. On the other hand, he found the father to be a highly emotional man who had “become regrettably obsessed by this case and its outcome.”

He judged that the father had not altogether been able to separate his own personal needs from an objective assessment of what was in B’s best interests, and said:

“My impression is that if the present situation, or anything like it, continues the father will not be able to control himself from monitoring every aspect of the mother’s life. Her sense of being beleaguered will continue. I foresee endless further complaints and allegations.

Nevertheless, Mr Justice Mostyn did not find the decision an easy one:

“I have found this to be an exceptionally difficult case to judge and I confess that, as the case has progressed, my provisional view, which one inevitably forms on reading the papers and the excellent skeleton arguments, has altered with some frequency. In the end, and having very carefully considered the [principles applicable to relocation cases] , and having focused intensely on B and on her best interests, I have concluded that, subject to appropriate terms, this application should be granted. I am satisfied that it is more in B’s interests for her to live with her primary carer in a place where she (the mother) can be happy and fulfilled. It is more in her interests than the continuance of the instability, uncertainty, conflict and misery that presently pertains.”

As to the father, Mr Justice Mostyn acknowledged that his decision would compromise the father’s relationship with his daughter and that it would be bitterly disappointing for him. However, he made a child arrangements order granting the father contact with B and made it clear that he expected the mother to comply with the order.

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. Andrew says:

    . . . and another father is cut out of his child’s life. If the mother does not cooperate with contact he will have to litigate in foreign country and in a foreign language. At the very least mothers who want to do this should be required to provide security for the father’s travel expenses.

    The sooner the Court of Appeal or the Supreme Court stops giving way to the moral blackmail of “I will be happier in X-land and will therefore bring up the child better” and adopts the notion of “indenture to sacrifice” the better.

  2. Anon says:

    Since we have Freedom of movement, can we not have laws which place’s far more significance toward multicultural children and the obvious difficulty that a judge needs to consider should events such as these evolve, which is far more frequently. Why not have laws which places the significance and recognition of a child born within the UK is a UK citizen. Obviously, any person going into a relationship with a UK citizen will then have a far higher degree of obligation. Frequently, It’s the legal advice which presses the correct legal argument and imposes upon the judiciary to play devils advocate. As UK adults, we all should be provided with legal directive which protects not only our sanity but also every child born within this country. Perhaps less children will be born under such a directive but placing any child under such conditions is immensely cruel. Every child has the right to both parents involvement and for me Parliament should address what I consider a loop hole that should not require Hague conventions to over rule. Every loving adult places such emotional attachment to there children, to restrict that involvement is a bereavement incurred daily for any parent restricted that access and bond. Every child adores both parents and far greater emphasis should be made to ensure that objective was adhered and administered from family court judges within this land.

  3. Luke says:

    Wow, I can hardly believe this.
    The core of the case is clear – the mother abducts the child and the Judge basically says – yeah OK, I am going to f___ the relationship the father has with the child because it’s not that important. Carry on…

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