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Focus on child's welfare underlines need for specialist advice

11 September 2015
The outcomes of cases involving international relocation of children, where one parent opposes the move abroad, tend to be much more finely balanced and difficult to predict than was the case in the past. The court's focus on the child's welfare underlines the importance of obtaining specialist legal advice.

Up until about 2011, the UK was generally regarded as a "pro relocation" jurisdiction. An application for leave to remove by a mother, if she had been the children's main carer, to relocate to another country was likely to succeed, unless her relocation plans in the other country were ill thought out and/or she was motivated by the desire to prevent the children maintaining a good relationship with their father. This was because the court's emphasis on the importance of "the emotional and psychological well-being of the primary carer" was elevated in cases following the very important Court of Appeal decision in Payne (in 2001) almost to a presumption in favour of such a mother's relocation application.

Times change. These days much more importance is attached to the relationships between children and their fathers, as well as their mothers, following the breakdown of their parents' relationship. In addition, the childcare arrangements made by today's parents, following the breakdown of a marriage or relationship, are many and varied - not least because most mothers now work outside the home. Consequently, attempts to categorise cases on the basis that they involve a "primary carer" mother, or "shared care" arrangements for the children, are no longer seen as particularly helpful or relevant in deciding such cases. Now no assumptions are to be made in favour of a parent seeking to relocate (nearly always the children's mother).

Consequently fathers are more likely to be successful than they used to be in opposing their children relocating abroad. The Court's decision whether or not to allow the relocation will be decided on the basis of what is in each child's best interests (known as "the welfare principle"), by reference to "the welfare checklist" of specific factors, set out in the Children Act 1989.

All the options put forward by the relocating parent must be weighed against the competing options of the other parent. In particular, there must always be analysis of the potential benefit of the relocation to the new country measured against the erosion in the quality of the children's relationship with the left behind parent in the event of the relocation.

The judicial guidance set out in the case of Payne is still relevant to the decision-making process but the judge hearing the case can decide the extent to which that guidance assists in dealing with any particular case, which will be decided on its own particular facts.

As a result, the decisions made by judges whether or not to allow the proposed relocation tend now to be much more finely balanced and difficult to predict. This makes it even harder to settle such cases and underlines the importance of obtaining expert specialised legal advice, whether you are a parent wishing to relocate abroad with your children, or a parent who is opposed to the proposed relocation.

How your case is prepared and the way you conduct yourself up to and including the final hearing can make all the difference in terms of the success or otherwise of the outcome of your case.

The case continues the line of "modern" authorities, post Payne, emphasising the paramountcy of the welfare principle to determine the outcome of relocation cases, whether internal or external.

For more information about international relocation of children/leave to remove, please contact Maeve O'Higgins Family Law Partner, Burlingtons Legal | Email: maeve.ohiggins@burlingtonslegal.com Tel: +44 (0) 207 529 5420

This blog is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.