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Relocation, relocation, relocation

We at CFLP are privileged to work in a very cosmopolitan place. Cambridge is the centre of a lot of global industries: we have a huge tech sector centred around the science park, our bio-chemistry credentials are increasing all the time, and we are also a great centre for the creative industries too, both old and new. These centres of excellence all attract international visitors to make our city their home, and it’s a rich and culturally diverse city as a result. In fact, Cambridge News reported only this week that currently more than one in five of our city’s residents are foreign nationals.

We’ve written before about how English divorce law impacts on international couples, and indeed on how it applies to their children. Children’s arrangements may be the most difficult thing for international couples whose relationships break down, particularly if one parent wants to leave this country with the children and go back “home”. It’s not only international couples who may encounter differences of opinion about the country in which their children should grow up. Sometimes after divorce or separation, one parent may wish to take a job abroad, or marry and live in their new spouse’s home country, or just leave for a better lifestyle overseas with the children. Their plans will see the other parent left behind, and the children’s relationship with him or her changed forever.

Relocation of children is a hot topic for the courts and for us, as family lawyers. Applications are increasing with the growing diversity of our communities, as illustrated here anecdotally in Cambridge. Twenty, even ten years ago the standard approach of the courts in relocation applications was to let the mother go – for it was, and is, almost invariably the application of the mother to take the children abroad to a new life – as long as her proposals were well thought out, and she could prove that she would find things so difficult if she wasn’t allowed to go that this would impact on the children’s welfare. But now, although the law itself hasn’t really changed, the social matrix that surrounds it has, and this is providing food for thought.

Fathers are more involved than ever before in the lives of their children, and shared parenting arrangements, ie those where the children spend significant amounts of time with both parents, are increasingly common. What then if one parent wants to move the children abroad? The paramount consideration for the court in these decisions is the welfare of the children, and it is easy to see how the balance may tip when both parents’ involvement with the children can be clearly demonstrated.

An Oxford academic called Dr Rob George has been doing some very interesting research about relocation cases, and has been trying to pin down the themes in court decisions in this area. It’s not an easy thing to do as only very few court decisions ever get reported, so Dr George also asked family lawyers to pass on information by completing questionnaires about the outcome of their ongoing cases. He also interviewed some parents, giving another perspective on how the system works. He looked not just at international relocation applications, but also at applications to move away but remain within the jurisdiction, which are legally quite different.

The first results of his research have just been released, and you can find the executive summary here on his very interesting Legal Liberal blog. They give a brilliant insight into how the courts approach these applications. We’re just going to focus on a couple of aspects here.

The headline figure is that in the sample he examined, Dr George found that two thirds of applications for international relocation with a child or children were allowed by the court, and one third were refused. We suspect this will come as a surprise to most family lawyers, who perhaps would expect the proportion approved to have been higher. It is fascinating to see that judges are more likely to refuse applications than the court’s reputation, and even the reported case law, may suggest to be the case.

In nearly 50% of the cases Dr George examined, there was a significant sharing of care between the parents (between 50/50 and 65/35) leading to perhaps a greater impact on the child’s welfare of a changed relationship with one parent, as discussed earlier – a factor that might lead the court to be more likely to refuse the application. But here’s another surprise: Dr George says that “In terms of children’s care arrangements, the overall picture suggested by the data is that applications where the respondent parent does not have overnight staying contact with the child are more likely to be allowed (around 75%) than cases which do involve staying contact (around 55%); but the amount of staying contact (whether amounting to shared care or not) does not make a significant difference.”

So, according to Dr George’s research it’s the fact of overnight contact rather than the frequency of it that appears to be more likely to influence the court in its determination of the welfare implications of relocation for the particular child involved. For family lawyers, and for their clients, this is a really interesting revelation.

It’s really important to remember that in family law, and particularly in cases concerning children, each family is unique, and the wide discretion given to our judges adds another layer of uncertainty about what the court will sanction in each individual case. Nevertheless, Dr George’s research and other projects like it are essential in helping us, and the general public, to understand the way our systems work to ensure better outcomes for children and family relationships after divorce and separation. If you have any questions on relocation of children or anything you’ve read here, do leave a comment below or give us a call on 01223 443333.

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