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Keep on moving (children)

It wasn’t so long ago that we wrote about relocating children overseas, properly known as applications for leave to remove a child from the jurisdiction. Court decisions on leave to remove cases are becoming more frequently reported, as life for many people becomes more international, with travel and cross-jurisdictional living becoming easier and relationships between people based in different countries more common. These cases are often interesting and shed light on what courts consider important in children’s upbringing. For example, the case we reported on in February involved a mother being permitted to relocate to Moscow with her son as she was a better role model for him, amongst other reasons.

This month there have been two interesting decisions about relocating.

The first concerned a relocation of a child to Sweden and was an appeal against an order allowing the mother to take the couple’s daughter back to her home country. The trial judge had taken the view that the mother’s difficulties (including excessive alcohol use and unsuitable relationships) would be considerably reduced if she were to return to Sweden where she had family support, housing and work on offer. In turn, those improvements in her living conditions would lead to her better parenting the child. As such the court considered that it would be in the child’s best interests to move to Sweden, where she had a better prospect of a healthy and safe life, where her dual heritage would be promoted and where she would be removed from the “instability, uncertainty, conflict and misery” in which the mother presently existed.

In making the decision the judge had gone against the recommendations of the social worker and the CAFCASS officer. This was the main reason behind the father’s appeal against the order. He was unsuccessful. The Court of Appeal was clear that a judge is not under an obligation to follow the recommendations of experts used in the case, and he or she has the unique advantage of seeing all the people involved, and the experts, give evidence over many days before making a decision.

The second case was an appeal by a mother against an order requiring her to return her 8 year old son to Morocco. The parents in this case were Moroccan nationals, who also possessed British nationality. They married in Morocco, lived for a while in England where their son was born, then lived in Saudi Arabia, then moved back to Morocco by which time the marriage was failing. In 2012 there were divorce proceedings in Morocco and the court there made an order entrusting “residential custody” to the mother and entitling the father to visiting rights on Sundays and holidays.

In or around January 2013 the mother came to England, leaving her son in Morocco with her parents. He spent most of the summer holidays of 2013 with his father there. Meanwhile the mother remarried in England according to Islamic law, and had a child with her new husband. In September 2013 the mother flew to Morocco, collected her son, and returned with him to England.

The father issued court proceedings in Morocco, saying the child had been taken without his consent, asking for a revocation of the court order giving the mother custody and asking for custody himself. Strangely, he did not ask the court for a return order. The Moroccan court refused the father’s application, saying it was not clear for how long the mother had gone to England and that because the father was unable to make a woman available to look after the child, “his request does not meet the legal and religious conditions required to allow him to look after his own child” in Morocco.

Stymied by the Moroccan justice system, the father started proceedings in England for the return of his son to Morocco. The judge ordered the mother to return the child, finding that he was habitually resident in Morocco. The mother appealed to the Court of Appeal.

It was clear that before the mother took him to England, the boy had been habitually resident in Morocco. Unilateral removal of a child from a country without consent of the other parent – otherwise known as international child abduction – does not change a child’s legal habitual residence. This meant the boy remained habitually resident in Morocco despite being in England; it also meant that the Moroccan court retained the power to make decisions about him. In the end, this fundamental point went against the father in the Court of Appeal as it meant that the English order to return the child to Morocco was made without the court having legal power and so could not stand. The earlier decision of the Moroccan court that the mother should retain custody of the child was respected. The boy and his mother remain in this country.

International children cases can be particularly tricky because the law and facts inevitably form a unique matrix on each individual occasion. However, there are settled legal principles established over many years that do form the basis of the courts’ decisions both on relocation and abduction cases. Despite the specialist nature of this area of family law, the same general principle applies as when the court is dealing with other aspects of children’s upbringing: the welfare of the child is always ­­the most important consideration.

If you have any queries about relocation or child abduction, or other areas of family law, give us a call on 01223 443333 to make an appointment with Sue, Simon, Adam, Tricia or Gail.