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Kirsten Grotte's Legal Update on International Relocation Cases

Cases have recently emerged from the Court of Appeal that has changed the way solicitors will have to advise their client’s when dealing with an application where one parent wishes to remove a child from the jurisdiction in order to live abroad. In many cases it is usually the mother that wishes to move abroad away from the father after a relationship breakdown and previously a lot of weight was attached to the effect on the mother if her application was refused by the court. If refusal of the application meant that the mother would be deeply unhappy, distressed and bitter then there would be a good chance that the mother would succeed in her application. This made it very easy for the instructing solicitor to prepare the mother’s statement of evidence for court proceedings and the mother would know exactly how to portray her feelings when standing in the witness box giving evidence. The original case law applied in these cases was Payne v Payne 2001, but it is only used now as guidance. This case assumed that the parent who wanted to move abroad with the children was the primary carer and so their wishes carried a lot of weight. This is because it had to be questioned whether refusal of the application would have a such a detrimental effect on the applicant parent that it would limit their ability to promote a happy, positive and stable environment in the home for the child. If the court came to the conclusion that the primary carer’s ability to care for the child following a refusal of their application would have a negative impact on their care then usually the application would be granted. This gives rise to the saying “a happy parent means a happy home”. However it has been recognised more and more in children act cases that shared care is often the case after a relationship breakdown and that both parents more or less have an equal input into their children’s care and the child care arrangements are often shared. New case law has emerged in MK v CK 2011, whereby the principles in Payne v Payne should now be used as guidance and that the judge should now exercise their discretion by applying the statutory Welfare Checklist. This is the same checklist that is applied in all other basic children act application for contact and residence disputes between parents:
  • The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
  • His physical, emotional and educational needs
  • The likely effect on him of any change in his circumstances
  • His age, sex, background and any characteristics of his which the court considers relevant
  • Any harm which he has suffered or is at risk of suffering
  • How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
  • The range of powers available to the court under this Act in the proceedings in question.
Therefore applying it to the more traditional case of the mother wanting to relocate, the more active role a father plays in their children’s care and the arrangements are bordering on shared care, then the more damage is likely to be caused to the child if they are moved to the other side of the world as their time spent with their father would be severely reduced.Clearly this is not a straight forward area of the law and therefore it is imperative that any parent dealing with a potential international relocation case, should seek independent legal advice from a solicitor.