Family Law

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The original version of this article appeared in New Law Journal, the leading weekly legal magazine.

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For many years, Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052 was the leading case for setting out the presumptions in deciding relocation cases. It has now been overtaken in terms of importance by Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882, [2017] 1 FLR 979. In the Court of Appeal, Ryder LJ gave the leading judgment and a comprehensive review of Payne.

Re F involved a German mother who had moved to the UK to be with the English father. On breakdown of the relationship, she sought to return to Germany where she submitted she had family support. The judge at first instance granted her leave to remove and the father appealed. In summary, Ryder LJ held that welfare analysis is required and the welfare of the child is paramount and it requires each and every realistic option to be considered in a comparative evaluation.

The Payne exercise (mother’s motives for taking the child abroad, father’s motives in opposing the application, impact of the move on father and child and impact on mother of refusal) were all part of the welfare analysis and none of the factors were deemed more important than the others.

These applications engage Art 8 of the European Convention on Human Rights and accordingly a careful balance of the competing interests must be considered.

A holistic review and a ‘balance sheet’ approach may be helpful with the pros and cons of each proposal (eg distance involved, level of disruption to relationship of parent and child) set out clearly to aid the judge’s analysis.

Re B (Relocation: Appeal)

The case of Re B (Relocation: Appeal) [2015] EWCA Civ 1302, [2016] 2 FLR 1131 is worth considering as the judge at first instance placed a £250,000 charge on a UK property belonging to the mother’s new husband, while permitting the mother to relocate to UAE (a non-Hague State). The property was to be forfeited if the parenting order was breached.

M v F

M v F [2016] EWHC 3194 (Fam) concerned a mother’s application for permission to relocate her two children to Utah. The court held the children’s welfare was the paramount consideration and there was a requirement to consider the proportionality of any proposed interference with the Art 8 rights of the children and the parents. Here, the relocation was opposed by the father and the children’s guardian, but permitted by the court. The father had ‘not succeeded in translating his love into a real commitment to them’.

Re AZ (A Child)

In Re AZ (A Child) (Relocation to Poland) [2016] EWFC 8 the judge allowed a mother to return to her native Poland with her two-year-old daughter on the strict condition that the mother facilitated contact with the father who was to remain in England.

Mr Justice Cobb stated that ‘there is only one key authentic legal principle engaged in a case of this kind, and that is that the outcome for AZ must be governed by what is best for her’.

Re K (A Child)

Re K (A Child) (International  Relocation: Appeal against Judge's Findings of Fact) [2016] EWCA Civ 931, [2017] 1 FLR 1459 was an appeal against an order permitting the mother of a 10-year-old girl to take her to live in the Republic of Ireland. The appeal was dismissed.

Re M (Children: Relocation)

Re M (Children: Relocation) [2016] EWCA Civ 1059, [2017] 2 FLR 562 was the father’s unsuccessful appeal against an order giving the mother permission to relocate to Moscow.

S v S (Relocation)

In S v S (Relocation) [2017] EWHC 2345 (Fam) a Russian father applied to take his two sons, aged 15 and 13, to live with him, his new partner and their child in Switzerland. The boys’ Russian mother, who lived in England, had been their primary carer and opposed the application. The children had their own legal representation. The boys’ relationship with mother was breaking down, and they had expressed their unhappiness with their lives in England. The independent social worker favoured relocation and both children were very enthusiastic about it. The relocation was granted by the court. These were not English children, the family was from Russia and also had Cypriot citizenship. They had lived in a bubble of extraordinary wealth and the court found that a refusal of the application might cause irreparable damage to their relationship, whereas a move to Switzerland might in fact improve their extremely poor relationship with their mother. The father was ordered to maintain a property in Switzerland for the mother’s use.

L v F

In L v F [2017] EWCA Civ 2121, [2018] All ER (D) 83 (Jan) the Court of Appeal considered the requirements of new PD12J, insofar as domestic abuse is alleged. It is worth reading for that reason as it summarises earlier case law. One of the grounds for appeal was whether the High Court judge should have considered Brexit and whether the UK leaving the EU should have been part of the reasoning in the court below. The Court of Appeal said that this was ‘imponderable’ and that ‘the consequences of the UK’s departure from the EU are presently unclear, and there is no sound basis on which courts can factor in the hypothetical possibility that an EU national’s immigration position might at some future date become precarious’.

Re C (Internal Relocation)

In Re C (Internal Relocation) [2015] EWCA Civ 1305, [2017] 1 FLR 103 the Court of Appeal reminded us that internal relocation cases, just like external relocation cases, are governed by the welfare principle. Mr Justice Black said:

‘It is important to recognise that all of this means that the child’s welfare is the paramount consideration in accordance with S 1(1) of the Children Act 1989 and, with the assistance of the welfare checklist, all the relevant factors are weighed in the balance with the objective of determining which of the available options best meets the child’s welfare.’

The decision in Re C was applied recently in AH v DT [2017] EWHC 36 (Fam).

Preparing the client

At the outset of his judgment in NJ v OV [2014] EWHC 4130 (Fam) Mostyn J said:

‘[O]utside the sphere of State intervention for the purposes of child protection, the hardest decision that a judge ever has to make in the field of family law or, for that matter, in any field, is the relocation decision. The choices are starkly binary. One or other parent will lose and will be bitterly disappointed. There is no scope for finding some comfortable middle ground.’

Before making an application, it must be clear that a client’s proposals are realistic, practical, well-planned, and respectful of the rights and feelings of the parent left behind. It involves careful research around:

• housing in the new location;

• existing ties, family, friends in the new location;

• quality of healthcare;

• the locating parent’s employment prospects and financial considerations;

• the quality of education for the child and the ease of entering a new education system;

• any language issues;

• visas and immigration issues;

• the political situation, stability, safety in the new country;

• transport links between the new country and the old country;

• any new relationships of relevance/step-fathers etc;

• what about the parent left behind?

• the effect on the locating parent of a refusal of permission.

• the child’s wishes and feelings;

• could the other parent relocate?

• Mirror orders. Is it a signatory to the Hague Convention 1996, a member of the EU and a signatory to Brussels II Revised?

Useful evidence

Useful evidence includes the following:

• school brochures and the equivalent of any OFSTED reports;

• a map—accommodation by reference to location of airport, school, public transport, nearest town;

• transport schedules—details of flight to and from old and new location, frequency of flights, flight costs, links with trains and other transport;

• housing particulars;

• evidence of employment prospects; and

• existence of mirror orders if relevant.

The left-behind parent

Regarding the left-behind parent, it is necessary to consider the following:

• all the above factors in reverse—the merits of the status quo;

• the effect on the child (is the child resilient?);

• the effect of the loss of daily contact;

• scrutinise the Cafcass report and any false assumptions;

• whether the relocating parent has genuine motives;

• whether the relocating parent could remain;

• whether the relocating parent will present a positive image of the left behind parent;

• instructing an expert in the law of the receiving state (in all but the simplest cases); and

• the welfare checklist.

FORUM—re-thinking relocation

FORUM is a group of family justice professionals focused on internal and international relocation of a parent with children. It comprises specialist solicitors, barristers, mediators, arbitrators, family consultants and independent social workers, committed to helping parents find a solution when they have different views about where children should live after divorce or separation.

FORUM members provide a comprehensive range of services from the moment that a parent considers relocating, to the implementation of any agreed arrangements or court orders. This may include the use of a mediator and/or independent social worker to assist parents in exploring their options. Where parents are unable to reach agreement and court proceedings are necessary, FORUM members are able to refer parents to solicitors and barristers within the group. There are arbitrators within the group who can decide the outcome where one parent wishes to move with children within England and Wales.

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For further information about FORUM contact Kim Beatson by email at: kim.beatson@anthonygold.co.uk or telephone on 020 7940 4011.