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Family Law Blog

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Applications to relocate overseas with children after divorce

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One of the hardest things to agree on and manage when a family splits up is where the children will live and the contact they will have with the other parent. In last week’s blog, we looked at the apparent rise in shared residence orders but there is also, conversely, a rise in the number of requests for one parent to move a child overseas.

When you stop to think about it, this is perhaps not unexpected. With a greater migratory population internationally, there are more marriages between couples from different countries. If that marriage doesn’t work out, it may be that one parent or other wants to move back to their homeland and that may involve applying to relocate any children also.

However, there has been a huge judicial shift, largely along with the concept of shared care/residence, where the bar to relocation appears to be set much higher. Ten years ago (maybe even five), we were advising (mostly) dads to accept that a relocation would in all likelihood be made if mum had sensible plans. Since then, the pendulum may have swung back the other way slightly, giving greater hope to fathers who would be left behind.

The first findings of a study into the current state of relocation applications has just been published. While not earth-shattering in its impact, it does show some interesting things. For instance, 95% of applications to take children abroad come from mothers. Only 5% of applications involved equal care arrangements.

Following on from my point above, 70% of applicants applying to take children abroad were foreign nationals. Courts in London and South East are more likely to refuse relocation applications than courts elsewhere in England and Wales – though it is fair to say that the bulk of cases come from that region. The average age of the children involved was seven, which illustrates just how delicately these cases must be handled for young children at an age when they may not fully understand what is going on around them.

In both domestic and international cases, applicants were more likely than respondents to be legally represented, and parents in international relocation cases are more likely to have been married previously than those in domestic relocations.

The particularly interesting thing in my view is that applications for a move within the UK have a roughly similar prospect of success as those overseas – 70 per cent compared to 67 per cent. There is perhaps a perception that the court will readily agree to moves within this country but this does not appear to be borne out by these statistics. It may be that a reluctance to allow a relocation to the other end of the country could be down to the increasing move towards shared residence, something made infinitely more difficult if regular travel between mum and dad is not possible.

Relocation applications tend to fall into two classifications: repatriation (return to country of origin) and lifestyle (better opportunities elsewhere). Applications to European countries tend to be less problematic than further afield and applications concerning countries with jurisdictions where mirror orders can be more easily obtained dealing with contact post relocation are easier, for instance Australia compared to China for example. This means if there is a problem, the other parent and the court making the order, can be more confident of getting help from the authorities in the child’s adopted homeland.

When considering a relocation request, a court will look at the following:

  • The welfare of the child
  • The situation and motivations of both parents, particularly where there is a residence order in place
  • The motivation to move – the court will look at whether it is genuine and not designed to bring contact between the child and the other parent to an end
  • The effect on the parent wishing to move abroad of not being allowed to do so
  • The effect upon the child of the denial of contact with one parent and, in some cases, their family
  • The opportunity for continuing contact between the child and the parent left behind.

It is fair to say that case law on the issue is mixed. The points above are taken into account but more recent case law has shied away from any formulas or checklists, stating that in each individual case the only criteria upon which a decision should be made is the best interests of the child concerned.

As it is such a significant change in a child’s circumstances, it is perhaps unlikely that an estranged couple will be able to agree on the move and so will need the court’s help to decide. Relocation cases involve very high stakes and are complex in terms of law and emotion. Expert legal advice and careful preparation can make a world of difference – literally - to a child’s life.

Kathryn McTaggart
Family solicitor, Cardiff

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