As the world has shrunk marriages between people from different countries have increased. Following separation one parent may find themselves living in a foreign land quite often with no family or support system. For those that have not experienced this it is hard to imagine how isolated and homesick a person can feel and this is when they may start to plan to go home. If they would like to take their child or children out of the UK, they must either have the permission of the other parent or permission of the court.
There can be very few types of private law applications regarding children that create such high emotions as an application by one parent to remove a child to live in another place (usually overseas). There are many such cases where the parents discuss a move following their separation and this is agreed with proper arrangements for the child's contact to the non-residential parent. Advances in technology with e.g. Skype and Facebook mean contact with a child in a distant land is much easier. Travel is cheaper and more reliable, and therefore regular visits more realistic. For a non-residential parent to agree to the other parent's request to relocate whilst still a difficult and emotional decision. It does not seem as final as the same decision might have been even 10 years ago.
One parent relocating with a child where a couple are separated parents may have a huge impact on all concerned including the non residential parent and the child. When deciding cases where agreement cannot be reached the court has the difficult task of balancing all the factors, having listened to evidence from both parents including evidence and usually reading a report from a children and family court advisory officer, to decide what is the best interests of the child.
Whilst at first blush a contested application for leave to remove a child from the jurisdiction seems very black and white and as such unsuitable for mediation, in fact these cases are more and more often referred to mediation either by one of the solicitors or by the court itself.
Mediation allows the parents, in a neutral environment, to explore the plan of the reclocating parent for the child including provision and plans for the child to stay in touch with the non residential parent. They can also discuss what is proposed for the child in the new home including housing, schooling and other activities. Fears and concerns can be aired. Whilst agreement is not guaranteed a skilful mediation can on many occasions allowed the parties to go to the court with an agreed order dealing with all aspects of the child's relationship with both parents if he moves. The order can be registered in the foreign jurisdiction.
Where agreement cannot be reached the matter will come before a judge who will make his or her decision. These cases are generally heard in private. To date, the available data is taken from very few cases that go to appeal plus some judgments made public by High Court judges. Dr Rob George with the blessing of Sir Nicholas Wall the President of the Family Division is now undertaking a much needed piece of research in an effort to gain more of understanding of these disputes. To enable him to do this he will be given a copy of all judgments and orders made during 2012.
As a Divorce and Family Law practitioner, I consider this research will help us in advising our clients when there is an application to remove a child permanently from the jurisdiction. Whilst every case is unique there are many similar threads running through cases.
In all leave to remove applications the court has as its paramount consideration the welfare of the child. In these cases the relationship with the parent left behind and how that will be impacted is being given more weight than ten years ago, this must be weighed against the impact of the parent asking to move being refused permission to take the child.
If you are a parent and are either thinking of relocating to another country or being asked to allow your child to move to another country it is important that you seek expert advice at an early stage as this may obviate the need for contested proceedings.
If proceedings are needed skilful preparation of the case is essential so that you have the best chance of the court making the order that you are seeking.