With a significant chance of a double dip recession, the UK is perhaps not the most appealing place to be at the moment. With this in mind, should an opportunity arise to relocate abroad or to return to a country of origin, then many may be sorely tempted.
If a family is united in its desire to relocate, then it is purely a matter of making the necessary practical arrangements before starting their new life, but what if the family is divided? Where parents are separated and one wishes to move abroad with the children but the other does not, how is the conflict resolved?
As with many family issues involving the exercise of Parental Responsibility, if no agreement can be reached between the parents, either through negotiation or mediation, then it will fall to the courts to decide.
The only principle applied by the courts is that the welfare of the children is paramount, but how do they decide what is in the children’s best interests? The facts of every case are so individual that the courts cannot make hard and fast rules but they can and have set out guidelines listing some of the factors that should be considered when making the decision.
Where the applicant parent is clearly the primary carer and the non-resident parent only has limited contact, then for the last 10 years the courts’ general approach has been to grant permission to leave the country provided certain factors were addressed, most importantly:
• there was a genuine reason for relocating and it was not an excuse to remove the non-resident parent from the children’s lives,
• there were clear and thorough plans as to an intended place of residence, financial arrangements, educational needs, language issues, and full details (including funding) of contact with the non-resident parent,
• a refusal of permission would have a significant negative effect on the applicant parent.
With many cases being decided in favour of the parent wishing to leave, it began to seem as if there was a presumption, particularly where applicants sought a return to a country of birth, that permission would be granted unless the non-resident parent could raise sufficient concerns regarding the welfare of the children. The burden appeared to have shifted onto the non-resident parent to prove that reduced contact with them would have a significant negative impact on the children’s welfare. Such arguments were often countered by stressing the greater variety of contact now available, including Skype and instant messaging, meaning that although direct contact would have to be reduced, the children’s relationship with the parent staying behind could be maintained.
Two factors have led to increasing concern with this approach; firstly research undertaken in 2009 indicated that in many relocation cases, there were significant problems in maintaining contact internationally resulting in many children losing their relationship with the non-resident parent. Secondly there has been a significant increase in parents sharing care of their children far more equally so that the situation of one parent being the clear primary carer is far less common.
As a result there has been a renewed effort by the courts to dismiss the idea of there being a presumption in the applicants’ favour. The courts acknowledged that too much consideration had been given to the impact any refusal may have on the applicant parent, and too little to the risks to the children of the inevitable reduced contact with the non-resident parent. The courts have now reiterated that, particularly where parents share care of the children, their only concern is the welfare of the children and, as with all other decisions relating to children, they must weigh up what is in their best interests taking into account:
• their wishes and feelings,
• their physical, educational and emotional needs,
• each parent’s ability to meet those needs and
• the risk of harm to them of the proposed changes in their lives.
On that basis an increased number of applications have been refused. The courts have also allowed an appeal against a decision made in the applicant’s favour where there was insufficient consideration of the potential negative impact upon the children at the original hearing. In that case, the parties, after prolonged and expensive litigation, found themselves back at square one!
With relocation cases there is no magic formula to get to the right answer. The courts have provided guidance encouraging parents to think very carefully before making significant changes to their children’s lives. They have stressed that the children's welfare is paramount, that they must consider every aspect of a move both in respect of the short and long-term consequences, and that they must safeguard the children’s relationship with the parent that would be staying behind. By focusing the parents’ minds in this way, it is hoped that they can reach agreement about what is in the children’s best interests which is always infinitely more preferable than having a decision imposed on them by the court.
For further information regarding family relocation or any
other family law issue, please contact Jo Davies, Family Law Solicitor at Mowbray
Woodwards Solicitors on 01225 485700 or via email at jld@mowbraywoodwards.co.uk.