Sandra Davis' Week: Relocation? Relocation? Relocation?

25 June 2010

Relocation? Relocation? Relocation?

Writing in these pages on 14 June David Hodson drew attention to the Washington Declaration on International Family Relocation. The declaration was issued following a three day conference that took place in March attended by over 50 judges and experts from 14 countries including the UK.

Amongst the thirteen recommendations contained in the declaration, the following were perhaps the most important:

- The best interests of the child should be the primary consideration;

- Mediation and similar facilities to encourage agreement between the parents should be promoted and made available;

- Reasonable notice should be given prior to relocation;

- Every state should have legal procedures that address the right to relocate with a child.

A few days following the publication of David's comment came news that the decision of Mostyn J re AR (A Child: Relocation) had been released. The case represents perhaps the strongest signal from any Judge of the Family Division that the decisions in Poel v Poel [1970] 1 WLR 1469, Payne v Payne [2001] 1 FLR 1052 have reached their sell by dates.

Referring specifically to the Washington Declaration and the comments of the current President of the Family Division earlier this year in re D (Children) [2010] EWCA Civ 50, Mostyn J commented that "The Declaration supplies a more balanced and neutral approach to a  relocation application, as is the norm in many other jurisdictions. It specifically ordains a non-presumptive approach."

As for Poel and Payne, he had this to say: "They are equally tendentious in the true sense of that word i.e. supplying a tendency, and that tendency is the almost invariable success of the application, save in those cases where it is demonstrably irrational, absurd or malevolent."

There has been a groundswell in the opinion of specialist practitioners that the Courts have been wrong to prioritise the wishes of the primary carer (usually the mother) over the best interests of the child. Many of our international colleagues find the ease with which relocation has historically been sanctioned by the English Courts extraordinary. It's time for a rethink. The choice to have children necessarily involves sacrifices. One of those sacrifices must be to prioritise a child's needs to maintain a fulfilling relationship with both of his parents over an often selfish desire to start afresh following parental separation.   

I suggest that Nicholas Mostyn speaks for most practitioners when he says a review by the Supreme Court of this ideology, which flows from the test set out in Payne, is "urgently needed".

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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