2011: a sea change in international relocation cases
The decisions and processes involved in emigrating are difficult
enough but some families find it is made much more complex due to
the legal requirements for removing a child permanently from the
jurisdiction.
In the last year there has been a revisit of the approach to be
taken by the court when deciding applications to relocate
children.
If both natural parents are emigrating with their children,
there is no requirement for the court to intervene or be involved
in any way. Judicial intervention comes when one natural parent is
not emigrating and in that situation where the other parent is
taking the children with them, the formal consent of the other is
required. In some cases the consent is willingly provided and there
is no ongoing difficulty, however this is not the most common
response given by a parent who is asked if their children can move
permanently abroad without them.
If the non-emigrating parent does not agree with the move, and
therefore will not give his/her consent, the emigration process is
often brought to a halt whilst the issue is resolved. The law in
England and Wales prevents children being removed permanently from
the jurisdiction without the agreement of all persons who have
parental responsibility (primarily biological parents). The refusal
to consent is not however the end of the road, as the parent
wishing to emigrate can apply to the court under the Children Act
1989 to obtain its consent to the move, overriding the other
parent’s refusal.
In situations where the non-resident parent has been having
contact with the children and an involvement in their daily lives,
the court has a difficult decision to make in deciding if the other
parent’s request to emigrate is in the best interests of the
children. In the past the approach was determined by the case of
Payne v Payne (2001), which established that the likely
distress to the primary carer in refusing to allow him/her to
relocate with the child was given greater weight than other factors
from the welfare checklist detailed in the Children Act 1989.
The case of MK v CK (2011) has moved matters back to
that statute and the welfare checklist within the legislation.
Judges must now balance the checklist equally, with no elevation
being given to the primary carer's likely distress in having their
application refused. This means that the court will investigate the
precise plans for the children including issues such as:
- the education and schooling in the destination country and how
such a school meets the specific needs and interests of that child,
the curriculum that would be studied and any extra curricular
advantages of the relocation along with the sports, recreational
and social prospects available to the children in the new
location
- why the move is necessary, business, professional and financial
benefits obtained by relocating and how this would benefit the
children
- the size, location and suitability of the proposed new home if
this has already been identified or likely available options in
other circumstances. In so far as the location of the new home is
concerned, there may be a review of the suitability of the
surrounding area for children, the crime levels and public services
available
- medical care and facilities available, particularly if the
child has any health difficulties
- any disadvantages that would be caused to the children if the
family were not granted leave to move abroad
- the contact that would be given to the parent that is left
behind. Modern technology has given the court more options to
consider to protect the children’s contact with the parent who
remains in this country, including indirect contact by webcam,
video conferencing technology, email and of course telephone. It
will however also be looking to see how direct contact (in person)
can be protected and maintained and the costs and practicality of
such contact depending on the location of the move and age of the
children. One option often considered is longer periods of contact
with the parent in the UK during holiday time to compensate for the
loss of direct contact during term time. Obliviously the child will
not be just losing direct, regular contact with the non-emigrating
parent but also their extended family that may be living in the UK.
This is often another objection the non-emigrating parent raises
when asking the court to refuse the application to remove the
children from the jurisdiction.
The court has to balance the emigrating parent’s liberties and
rights to move, against the children’s right to an ongoing
relationship with both parents. This can be very difficult when
both parents are acting in what they think is in the best interests
of the children. The court is not able to stop the emigrating
parent from leaving, but is able to stop the children going with
them if, when reviewing the options and the particular facts of the
case, they decide that the children should not be allowed to
permanently leave the jurisdiction.
Any application to remove children should be supported by clear,
thorough evidence of why the move is proposed and what the benefit
will be to the children in question whilst showing contact with the
other parent would not suffer as a result. Any application to
prevent/stop the children being removed needs to be focused on why
the move is not in the best interests of the children and must be
compelling.
A case that Blake Lapthorn was recently instructed to deal with
involved a teenage girl who had not had contact with her father for
over five years. His consent was still required to enable the child
and her mother to emigrate. The mother provided detailed
information to the court about the school and education system to
where the child was moving and information about the proposed home
and location she would be living in with the child. The father
argued that the move abroad could effect the child’s education and
career options and would make contact more difficult in the future.
The court decided that there should be provision for ongoing
indirect contact and that the balance of the legislative factors
meant that the move was in the child’s best interest.
Another case recently decided was made more complicated by the
fact that the children were being separated from an older
half-sibling who remained with the non-emigrating parent. In such a
case the effect this separation would have on the children was an
important factor the judge needed to take into account when
deciding if such an application should be successful.
A court application can be avoided if both parents obtain legal
advice. Case law in this area is helpful and can mean the parents
are clear on their chances of success in making or preventing such
a move. However, each case is decided on its specific facts and
therefore either parent may be inclined to ask for the court’s view
on such an important and emotional decision. Specialist legal
advice from a solicitor practicing in this area of the law is
vital.
