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Finely balanced relocation case

Finely balanced relocation case

In many children relocation cases, the outcome is, of course, fairly obvious: the evidence points clearly in that direction, and the decision for the court is (relatively) easy. But sometimes it is not so clear-cut. Sometimes there is no obvious ‘correct’ decision – there is little, or nothing, to choose between the merits of each parent, and the arrangements they each propose for their children.

Unilateral removal

So it was in the recent High Court case Re H (Children: Relocation).

The background of the case was as follows.

  1. The mother is English and the father is Dutch.
  2. They met in 2010 when they both lived and worked in West Africa. In 2013 they set up a home in the Ivory Coast.
  3. They had two children, born in 2015 and 2016. The children were both born in England, but thereafter lived with their parents in Ivory Coast.
  4. The parents’ relationship broke down and came to an end in 2017.
  5. Initially, the parties continued to live under the same roof, but in March 2018 the mother brought the children to England, without the father’s consent. The children have remained here ever since.
  6. On the 11th of April 2018, the mother applied to the court in England for orders securing the children’s living arrangements with her. On the following day, the father issued an application for the summary return of the children to the Ivory Coast. The court found that the mother had unilaterally removed the children from the Ivory Coast where they were habitually resident, but that the courts of England and Wales should continue to deal with the matter. The father’s application was dismissed.
  7. Thereafter, the parents attempted to agree on arrangements for the children via mediation, but without success.
  8. The father relocated to the Netherland in March 2019. The children have spent extended periods with him there.
  9. The mother wanted the court to make orders securing the continuation of the current arrangements. The father applied for permission to relocate the children to the Netherlands.

Highest standards

These matters fell to His Honour Judge Moradifar to decide. His difficulties can be highlighted by the following facts:

  1. The parents agreed that wherever the children lived, it would be ideal that the other parent should relocate to live close to the children, where they could be “co-parented”. In the absence of such an arrangement, the parents agreed that the children regularly and extensively see the parent who lived in another country.
  2. The Cafcass officer found the parents to be ‘exceptional parents’ and had “no material concerns about either parent’s ability to parent the children to the highest standards” (each parent confirmed the other’s parenting abilities). As such, she found herself unable to make a positive recommendation about the children’s living arrangements.
  3. The children had a “close and positive relationship” with each of their parents, very much enjoying living in their two homes.
  4. The mother stated that she had been very supportive of the children’s Dutch heritage, as illustrated by her continuing commitment to contact. She had also looked into the possibility of the children having extra tuition in Dutch.
  5. The Cafcass officer had no serious concerns about the father’s proposed relocation of the children to the Netherlands.
  6. Both parents agreed with the Cafcass officer’s recommendation that more than half of school holidays should be used to increase the time spent with the parent with whom they did not live in term time.
  7. HHJ Moradifar found the mother and the father to be “charming, intelligent and focused on their children’s welfare.”
  8. He was also certain that the mother would promote a positive relationship between the children and their father, and equally certain that the father would promote and preserve a positive relationship between the children and their mother.
  9. Further, he had no doubt that the children would thrive and flourish wherever they lived, in the care of either or both of their parents.

He came to the following, perhaps unsurprising, conclusion:

“This is a finely balanced case that has seen a very experienced [Cafcass] officer [unable] to make a firm recommendation about in which country the children should live. The evidence of the parents’ capabilities and child focussed approach is overwhelmingly clear. I am certain that these children will have a close and enduring relationship with both of their parents. Having considered the totality of the evidence before me … I find a lack of cogent evidence or justification for the court to interfere with the children’s living arrangements.”

Accordingly, the father’s application was dismissed, and the children’s current living arrangement with their parents was recognised by a ‘joint live with order’, including spending extended periods with their father.

You can read the full judgment here.

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If you would like any advice on child law, you can find further articles here or please do contact our Client Care Team to speak to one of our specialist children lawyers here. 

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, with his content now supporting our divorce lawyers and child custody lawyers

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