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In the field of private family law, one of the toughest decisions judges face is whether to let a child relocate permanently overseas with a parent. These cases are formally known as leave to remove applications, because leave (i.e. the permission) of the court is required in order to take a child away from the jurisdiction of England and Wales on a permanent basis if the parents do not agree. Doing so without consent of a parent or permission of the court can amount to child abduction.

These cases are always tricky. If a judge gives permission for a relocation, then the parent remaining in this country will be bereft, and left facing arduous and expensive journeys to see their child face to face. If permission is refused then the parent who wanted to leave, often to return to a home country or to one where they have family support, will be left feeling stranded and isolated in a country in which they no longer want to live, but hamstrung by the court’s decision.

As a general rule of thumb, to stand a chance of success, the parent applying for leave to remove a child from this country has to have a very well thought out plan for the child’s new life, including appropriate housing, schooling, medical care, financial support, and solid proposals for making contact work with the parent left behind. The motive for relocation must be genuine and not driven by malice or a desire to exclude the other parent from the child’s life. Judges carefully scrutinise each case, with many applications being refused.

A court’s first, and overriding, concern is the welfare of the child concerned – will it be better served by moving abroad or by staying? It will look at the impact of relocation on the left behind parent, and that parent’s reasons for objecting to a move, as well as considering the impact of a refusal to allow the relocation on the applicant.

A recent case, called S v G raised some interesting issues in connection with an application to relocate, which may well have wider resonance.

In that case the mother was Russian, and the father English, and they had a little boy, D, who was 2 ½ at the time of the hearing. The parents’ relationship was relatively brief, conducted across two countries (Russia and England) and unfortunately bad tempered towards the end. At the time of the hearing, the little boy was being cared for by both parents, but the mother wanted to return home to Moscow, where she had a far greater support network.

The judge had to weigh up the options and what would be in the best interests of the child. He considered their respective abilities to meet D’s longer term needs. He was clearly impressed with the mother, whom he described as a dynamic, energetic and insightful individual. She had until recently had a good career and a strong social network, she has learned English, and been keen to promote her son’s relationship with his father and wider family. She was not without her issues, however, including having been a cannabis user previously, and being arrested for assaulting the father, after which she acceded to social services’ suggestion that the little boy live with his father for a time.

The father’s case was that his son’s birth had given meaning to his life. However, he remained a user of cannabis, was unemployed and had not attempted to learn any Russian, despite it being the mother of his son’s first language. The judge also said that the father lacked an instinctive belief in the importance to D of time spent with the mother, refusing her requests to speak to him on Skype as he did not want his time with his son to be interrupted.   His family were also keen to support him, but would not engage with or support the mother at all despite her living just round the corner from them and being without an extended family in this country.

The judge acknowledged that returning to Moscow would cause a great loss to D in the short term, as he would lose time with his father. However he was rather damning of the father saying that in order to be in a position “to set an example for D and even to support him financially, he needs to regain control over his life and maximise his chances of rebuilding his situation, in particular by getting a job. This is not likely to happen if he is relying on D to give meaning to his life, when it is D who should be relying on him.”

The mother was permitted to return to Moscow, and to take D to live there. The judge commented that to require her to remain in England for at least the next 15 years would leave her with a justifiable sense of bitterness that would not be in D’s interests. The order itself is produced at the end of the judgment and shows that the judge built in provisions for regular, extended visits both ways and twice-weekly Skype contact, doing everything reasonable to enable D to have the opportunity to stay closely in touch with his dad.

The comments about the need to be a role model, and be successful, in order to be better placed to raise a child are interesting, as are the observations on the role of the wider family who can so often become polarised, and perhaps lose sight of what the child needs in these cases. We imagine they will not be restricted to use in other relocation cases, but may have relevance to domestic cases concerning arrangements for children, where differences in the approach of the parents may be under close scrutiny if matters cannot be agreed out of court.

Relocation matters have a reputation for being difficult to resolve in mediation or collaborative law because it may seem difficult to find a compromise that is bearable for both parents and in the child’s best interests. However, it is often possible to use these more creative forums to discuss options and skilled professionals can often facilitate the generation of ideas that, one way or another, might have the potential to make things work. In our experience, for the child’s sake it’s always worth trying to talk things through in a neutral forum with people who want to help.

If you would like to talk to us about relocation, or any other aspect of family law do please get in touch on 01223 443333.

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