This is a post by Sarah Phillimore

If you are a person ‘connected to a child’ who is under 16 – i.e. you are that child’s parent – and you take the child out of the jurisdiction of England and Wales without getting permission from the other parent, then you could find that you are committing the criminal offence of child abduction.  See the Child Abduction Act 1984. However section 4 gives you a defence IF you have a child arrangements order which sets out that you are the person the child lives with AND you are out of the country for less than a month.

Therefore, if either parent wants to leave England and Wales – to either return to their home country or start a new life with a new job etc – that parent will either have to get the agreement of the other parent or a court order.

Such applications to court are known as ‘leave to remove’ applications. There is no specific provision in the Children Act dealing with relocation cases. The child’s welfare is paramount and the court will go through the welfare checklist.  It may need to ask CAFCASS to provide a section 7 report to help it determine the weight to put on the different items in the checklist.

The case of Payne v Payne [2001] for a long time was the key authority in this area, but there was increasing concern growing about how the courts interpreted this case and a perception that too much weight was being put on the disappointment of the parent who wasn’t allowed to leave.

Therefore, there has been a shift in more recent case law to considering more carefully the impact on the child of the loss of direct contact with the parent who remains behind.

Each case turns on its own facts and case law can be no more than a guide. The court will be keen to understand the motivations behind the move. Is it a genuine wish to return to a familiar place, with possibly more family support? Is it a wish to take up a job offer that represents a real opportunity? Or is the move possibly a tactic in an acrimonious relationship breakdown to prevent continuing contact between child and parent?

There have been a number of cases decided since Payne v Payne. One useful case is S v G (Relocation to Russia) [2015] EWFC 4 which considered if there should be any distinction between those cases where before the suggestion of relocating, one parent had ‘primary’ care or where both parents had more or less equal time with the child.

The legal principles can be summarised in this way

• The child’s welfare is the court’s paramount consideration.
• The court is to have regard to the welfare checklist in section 1(3) of the Children Act 1989.
• Courts should not categorise cases in terms of concepts of shared or primary care but should use the facts of the case and the answers arrived at in consideration of the checklist to
  • describe the arrangements for care on the ground as they have been;
  • as they are at date of the hearing; and 
  • as the parties intended them to remain had it not been for the question of relocation.

In applying these principles the court will examine:

• The applicant’s proposals for relocation; a ‘going home’ case may be less arduous than an entirely new venture;
• The applicant’s motives – in particular is a significant motivation to exclude the other parent?
• The motives of the respondent – are any objections truly child centred?
• The impact of relocation upon the respondent.
• The impact of refusal to permit relocation upon the applicant, insofar as this impacts upon the child.

How do you assess motivation?

In essence, by examining how well planned and researched any proposed move is. What plans have been made for where the child will live and go to school? What language will the child be speaking? What plans for contact with the other parent have been made? How easy is it to travel? If direct contact isn’t going to be possible more than a few times a year, what other arrangements such as Skype can be put in place? Is the child simply to too young to be able to benefit from that kind of indirect contact?

it is clearly very important to make an application to relocate in good time. These applications are unlikely to be dealt with in less than six months so if a move is planned to coincide with a new school term, it is important to give enough time for the court process to conclude.

Similarly if a parent is objecting to a move even when remaining in the UK would mean the other parent facing poverty, insecure accommodation and lack of support for e.g. then this will inevitably impact on the weight the court gives to the objections against relocating.

An example of a case where relocation was refused

See Re R (A Child – Relocation) [2015] EWHC 456 (Fam). The court set out a number of reasons why the mother’s application failed. The child was 2 1/2 years old and had been born in America following IVF treatment of a donor egg and the father’s sperm. The mother wished to leave the UK and go to Hong Kong. No issues were raised about the father’s ability to care for the child and the court noted a strong bond between the. On the facts of this case, the court rejected the view of CAFCASS that it was a ‘finely balanced’ one.

• The father’s work commitments made it almost impossible for him to travel to Hong Kong even for short periods.
• No argument was made, nor would the court have accepted such an argument on the evidence, that the mother was isolated or lonely in England.
• The court didn’t accept the mother’s arguments that remaining in England would cause her financial hardship, for example, accepting the father’s evidence that there were a number of agencies that the mother could have approached for work but had failed to do so.
• The court concluded that the mother had presented barriers to the father spending time with the child, some of which disappeared without any explanation and she had been disdainful of the father when making holiday arrangements. 
• The mother’s proposals for contact between the child and father following relocation were insufficient to make up for the loss in the relationship. This harm to the child would be compounded by the likely sense of abandonment upon the child finding out, as he will in the future, that the father was his only natural parent.

 

Conducting a comparative analysis of standards of living in different countries

What if one parent argues that the living conditions in the country of relocation are significantly inferior to those in the UK?  Unless the situation is so dire the that – for example, the Foreign Office advises that a particular country is not safe, i argue that the English court can go no further than to scrutinise the information offered by the parent wishing to relocate, to be satisfied that the parent has made reasonable plans to meet the child’s basic requirements for accommodation, education and health care.

An attempt by the English court to carry out an analysis of standards of living in two very different countries is inappropriate for two main reasons:

• this exercise risks diverting the court’s focus away from the welfare of the particular children before them, as demanded by the Children Act 1989. The court must consider what advantages/disadvantages of the move pertain particularly to them. For young children the focus will be largely upon the quality of the relationships they can sustain with their adult carers. A variety of factors go into assessing quality of life in various countries, not all of which have relevance to the experiences of the particular children before the court.
• The overriding objective for the court under both the Family and the Civil Procedure Rules is to deal with cases justly but proportionately. To conduct a comparative analysis of life in  different countries would be a lengthy and expensive exercise, which is likely to require possibly contested expert evidence and consideration of a variety of reports from the United Nations and other organisations. By argument with analogy as to how the court have approached attempts at ‘comparative country analysis’ in immigration/asylum cases, in Re A (Care Proceedings: Asylum Seekers) [2003] 2 FLR 92 the court found that absent any established risk to the children on being returned to their country of origin, it was an abuse of process to continue care proceedings to prevent the parents and children being returned.

The Hague Convention 1996 and Mirror Orders in the foreign court.

The Hague Convention provides that all contracting states shall recognise by operation of law all measures taken by the authorities of another contracting state. Therefore, if the parent wants to relocate to a country that has ratified the HC, a ‘mirror order’ may be made in that country’s court,  permitting the respondent to take enforcement action if the applicant does not abide by its terms.

An example of a case where a mirror order was made when relocating to South Africa can be seen in the case of Re MM (A Child: Relocation) [2014] EWFC B176