After a two-day contested trial, Trinity barrister Mairi Clancy persuaded the Court to grant leave for a parent to relocate to another continent with their three children.
Instructed by Sara Stockdale of Hathaways Law, the case involved issues of domestic abuse, religious and cultural practices and parallel ancillary relief proceedings.
Solicitors had compiled an exceptionally detailed, child-focussed plan for the relocation including evidence of:
- Offer of and details of the education on offer for the children, considering the children’s specific needs and comparative EHCP provisions in the new country.
- Plans for social integration, including clubs, opportunities to practice and promote the child’s religion.
- Details of how the children’s particular health needs would be met.
- A clear plan as to how the children’s contact with the parent remaining in the UK would be promoted and maintained.
- Practical and childcare support available for the moving parent (such as extended family and close friends).
- The financial implications the move will have, including a budget of income and expenditure.
- The recognition and enforceability of a Court order made in the United Kingdom within another jurisdiction.
Anyone wishing to make an application for permanent relocation with children must present such a plan and expect for it to be scrutinised closely by the Court.
The law
Practitioners should be aware of the following cases:
DV v VM [2020] EWHC 488 (Fam)
Williams J described the task of the Court in relocation cases as follows:
“to weigh up (...) the competing options as to the country in which the child(ren) should reside and the parental care framework in which the child(ren) will live. That requires a comparative evaluation of the options available”.
Williams J then sets out the following guidance as to the correct approach for international relocations cases. This guidance was extracted from the earlier decision of RE F (A Child) (International Relocation Case) [2017] 1 FLR 979:
- The only authentic principle is the paramount welfare of the child.
- The implementation of s1(2A) of the Children Act 1989 makes clear the heightened scrutiny of required of proposals which interfere with the relationship between children and their parents.
- The welfare checklist is relevant whether the case is brought under s8 or s13.
- The effect of previous guidance in cases such as Payne may be misleading, unless viewed in its proper context, which is no more than it may assist the Judge to identify potentially relevant issues.
- In assessing paramount welfare in international relocation cases the Court must carry out a holistic and non-linear comparative evaluation of the plans proposed by each parent. In complex international relocation cases this may need to be of some sophistication and complexity.
- In addition to Article 8 rights (...) one must factor in the rights of the children to maintain personal relations and direct contact with both parents on a regular basis (unless that is contrary to their welfare) in accordance with Article 9 of the United Nations Convention on the Rights of the Child.
- The Court must take into account the Article 8 rights of the parents, with those rights being balanced with the children’s Article 8 rights.
- The rights of extended family members will also have to be considered, although the further removed from the child and the parents they are, the less their rights are to be infringed.
- The effect of an international relocation is such that the Article 8 rights of a child are likely to be infringed and the court must consider the issue of proportionality
Re C (a child) [2019] EWHC 131 Fam.
At paragraph 16 Williams J uses a neat “peaks and valleys” metaphor:
“(...) Of course in some cases it may be that one or more particular aspects will emerge as carrying significantly more weight than others – a contour map with high peaks and low valleys; in others the factors may be much more evenly weighed and present a gently undulating landscape. In the former the balance may fall more obviously in one direction if it is dominated by peaks with no valleys in others the peaks may be balanced by the valleys creating a finer balance. In the latter the overall undulations may make the balance a very fine one (...)”
What can be said from this authority is that in order to succeed in an application for relocation with children, an applicant will be required to demonstrate that for the children the peaks outweigh the valleys thus tipping the balance in favour of relocation as opposed to remaining.