02 September 2011
Landmark Ruling - Relocation of Children, Marwa Hadi discusses
On divorce or separation, it is natural that the former couple may as individuals no longer live in the same town, city or even country. Whilst this causes no problems if there are no children of the marriage, if there are children, this complicates things significantly. Provided any move by the resident parent is to a location which is still relatively local, then the parents can still sometimes co-parent effectively and this is unlikely to impact on contact significantly. The real difficulties arise when one member wants to move abroad.
At Slater and Gordon Lawyers we often act for resident parents who want to start a new life elsewhere and wish to take the children of the family with them. We also regularly act for non resident parents who seek advice in obtaining a "prohibited steps order" preventing the resident parent from moving to ensure they continue to have contact with their children.
Traditionally, the Courts have been of the view that the resident parent should not be tied to a particular area and should effectively be able to move on and start afresh. It is often the case that expats wish to return to their country of origin with their children or the resident parent remarries and wishes to move closer to their spouse's family/place of work. Of paramount consideration is still the welfare of the children but previously Courts would generally be of the view that if the resident parent was forced by court order to remain living in a particular area and not be able to move closer to perhaps, their own support network then this would affect that parent's emotional well-being which in turn would affect the child's well-being.
A recent case heard by the Court of Appeal however has indicated that a different approach would now be taken by the Courts. In a case where the resident mother wished to return to her native Canada permanently and take the children with her, the Court found that the distress that would be caused to the children by losing contact with their father, who had contact with them two nights every week, outweighed the distress that would be caused to the mother in not relocating. Therefore, future cases regarding relocation would now focus on the damage caused to the children by reducing contact with the non resident parent.
Despite the findings of this case, a non resident parent should still always obtain legal advice immediately if they suspect their former spouse/partner intends to move abroad with the children. It is always easier to prevent a move from happening by obtaining a "prohibited steps order" than it is to force the former spouse/partner to return following the move by obtaining a "specific issue order" as the children may well be settled in their new life and the Court may be reluctant to disturb the existing status quo. While opinion amongst family law practitioners may be divided regarding this change in the Court's approach, I would consider this case has gone some way to redress the balance between the rights of the resident and non resident parent and ensure shared parenting can exist, even if cases where one parent has significantly less contact with the children.
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