Family Law

With the world becoming ever smaller and people travelling to different countries to work, study or live, relocation applications and more specifically international relocation applications are becoming increasingly more prominent.  It could be the case of a separated parent wanting to return to their home country to benefit from the support of their extended family, or a parent wanting to start afresh, take a new job opportunity and start a new life abroad.  Whatever the circumstances, the court has a difficult job balancing the competing interest of the parties and the child.

These cases are often very difficult for a judge to determine; there is no middle ground, no negotiation, it is a binary decision which will change not only the child’s life but the lives of both parents.  The left-behind parent will be less involved with that child’s life, unable to attend plays, sports day or parents’ evenings.  The parent seeking the relocation may be forced to put their plans on hold, not take that job opportunity or remain in a foreign country with no family support.  Then there is the child, practical considerations must be given regarding schooling, healthcare and financial support not to mention their relationship with the left behind parent.  A very difficult balancing act therefore occurs for both parties and the court.

The law

The leading case on this issue had been Payne v Payne [2001] EWCA Civ 166.  The court indicated that the mother’s motives for taking the child, the father’s motives for opposing, the impact of the move on father and child and the impact on the mother of refusal were all part of the welfare considerations and none should be given more weight than the other. Whilst no longer the leading case the principles established remain as the key considerations for the court in determining the issue.

The case has now been overtaken by Re F (A Child) (International Relocation Case [2015] EWCA Civ 882.  It was concluded that whilst the court is still entitled to consider the factors set out in Payne, the child’s welfare will be the most important consideration for the court.  The court must consider each and every realistic option in a comparative evaluation known as the ‘holistic exercise’.  

Preparing an application 

Preparation is the key to success in an application to relocate.  A parent must have firm plans, supported by evidence in order to persuade the court of their application.  It is important to consider whether their plans are realistic, practical and well planned.  They must also consider how contact with the left-behind parent will be facilitated and how this will be funded.  It is all very well suggesting that contact can take place once a month and the child will fly from Germany to Manchester to see their father, but there are many questions to be answered: who will fund this, how will the child get to and from the airport, will they need accompanying on the flight, what is the travel time from school to the airport in Germany and then from the airport at the other end, what time and how frequent are the flights? All of these factors will need careful consideration before any application can be made and it is important that this information is extracted from your client at an early stage.

When speaking with your client it is helpful to have a checklist of information that you need from them to help guide your discussions.  This should include some of the following;

1. Any family and friends in the new location to provide support.  Think about statements from them about how they may be able to provide support;
2. Quality of the healthcare in the new location.  If health insurance is needed then will the child qualify and if so how will the premium be funded and what will it cover;
3. Housing in the new location.  This should include housing particulars, information about the local area including local amenities and activities for the child;
4. The quality of education for the child, details of where they will go to school, whether there is a place for the child at the school and how, if they are already enrolled in a UK school they will transition to school in the new location;
5. The job prospects of the relocating parent including financial considerations and how the financial needs of the child will be met;
6. If the relocating parent is working details of any child care support, including after school clubs or child minders;
7. Details of any visa or immigration issues which may arise;
8. How any language issues may be dealt with, will the child have lessons before travelling or will they attend an international school;
9. Full proposals in respect to contact with the left behind parent including financial considerations and flight times;
10. Dependent upon where the proposed relocation is taking place consideration may need to be given to the political climate, the safety and stability of the country;
11. It is also important to set out the impact on the relocating parent if they are refused permission.  What will happen to their job prospects or will it have a negative effect on their mental health and wellbeing;
12. Enforcement of any order in the relocating country.  Are they are signatory to the Hague Convention or do mirror orders need to be put in place;
13. The wishes and feelings of the child, of course the weight to be attached to this will vary dependent upon the age and development of the child.  It may be necessary to consider the instruction of an Independent Social Worker with specific experience of relocation to manage this issue.

Once all of this information has been gathered it may be helpful to consider a table or balance sheet for the court setting out the competing cases.  This can be a worthwhile exercise when preparing your client’s evidence as it highlights very starkly any gaps or weaknesses in your evidence. Ultimately you need to paint a very clear picture to the court of what life will be like for the child in the event that permission is granted and in the event that it is refused. If the evidence is not falling in preference of relocation then further information may be required.

It is clear from the case law that the court is deciding these cases on a factual basis with consideration being given to the manner in which parties have chosen to manage their lives.   Your client’s evidence is likely to be the most compelling piece of evidence and so time must be taken to properly prepare.

Whilst they are costly and do carry an element of risk which as family practitioners we are not necessarily used to, given that we are often able to compromise or negotiate, with the correct preparation and evidence the court will be willing to consider relocation.