I have been following a recent spate of cases where one parent has sought to relocate out of the country following separation or divorce with great interest. It seemed as though we were witnessing a real change of emphasis with more attention being paid to the effect of reduced contact between children and the parent left behind than had previously been the case.
Since 2001, the courts have largely followed a landmark case (Payne v Payne) where a mother was allowed to return to New Zealand even though it effectively meant that the father would lose contact with his daughter. The mother was the primary carer of the child and she was able to show that the adverse effect on her mental wellbeing of being forced to remain in the UK outweighed the loss of contact between the father and his four-year-old daughter. To illustrate this, there was a case we blogged about in April (Is Skype really the answer to losing children in divorce) where a judge ruled a mother could move to Australia with her daughter despite the fact it would severely affect her relationship with her father.
However, I have noticed several instances of cases bucking the trend. Earlier this year, a judge ruled that it was not acceptable for a mother to move back to Canada with the children following divorce. In this case, the children lived with both the father and mother following separation and the fact that residence was shared was an important but not overriding factor.
In another case, further hope was given to fathers when one of the judges at the Court of Appeal commented that perhaps the weight given to the potential damage done to children by the negative effect on the mother of refusing relocation, ignores or relegates the harm done to a child by the permanent break in his relationship with the other parent. But, just as it seemed we might be seeing a significant change of attitude, the same judge took the opportunity to say in a third case that too much weight had been given to his comments in the earlier case and the test in Payne v Payne still very much applied. Confused?
Those considering relocation, or those seeking to prevent it, should therefore bear in mind that the court will use the points below to reach its decision:
- The welfare of the child is always paramount
- There is no presumption in favour of the parent looking to leave the country
- The reasonable proposals of the parent wishing to live abroad shall carry great weight where there is a residence order in place
- The proposals must be scrutinised carefully and the court satisfied that the motivation to move 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 is very important
- The effect upon the child of the denial of contact with his father and in some cases his family is very important
- The opportunity for continuing contact between the child and the parent left behind may be very significant
With Payne v Payne remaining the authority, it is the points above that are likely to hold most sway over the decision.