| |
|
|
|
International relocation set to get tougher for separated parents following Court of Appeal ruling
|
 |
A recent Court of Appeal ruling is set to make it tougher for separated families to relocate abroad with their children, according to Fiona Lazenby, partner and head of family at Derby law firm Flint Bishop:
“The outcome of this latest case is likely to result in an increase in the number of divorced or separated parents who are legally prevented from relocating abroad with their children.
The decision concerned a classic relocation situation whereby a mother with two children aged two and four, of Canadian origin, wished to return to Canada after the breakdown of her marriage.
However, the father continued to play a significant role in the children’s lives following the separation of the parents.
Currently, under the Children Act 1989, a parent wishing to relocate abroad requires the consent of the other parent, or the Court’s permission to do so.
In this case (MK v CK) the Court welfare report recognised that the mother felt isolated and lonely in England, but recommended that the application should be refused.
It was felt that if the application were allowed, the damage to the children arising from the inevitable reduction in contact with their father would outweigh the damage arising from the distress to the mother if the application were refused.
However the Judge in the previous hearing did not follow the recommendations of the Court Welfare Officer and allowed the application to relocate.
The father appealed the decision and the Court of Appeal came to the view that the mother’s application should be refused even though it was acknowledged that the effect upon the mother would be devastating.
The ruling by the appeal judges in the MK v CK case set aside earlier interpretations of thePayne v Payne precedent, which bound judges to take particular account of the welfare of the main carer, after it was seen as out of touch with modern arrangements encouraging shared parenting.
The Current guidance is very clear - the welfare of the child is paramount and the rights of the parent should play no part in an assessment of the welfare of the child.
The Children Act sets out a welfare checklist which includes the wishes and feelings of the child (dependant on the children(s)’ age and understanding) as well as their physical, emotional and educational needs and the likely effect of any change in their circumstances.
In effect, what this ruling means is that what was once regarded as principle in relocation cases is now merely guidance. From now on, the correct approach in every case is to apply the welfare checklist in full.
A balance will need to be struck – The likely distress to the mother from refusal of permission to relocate over other aspects of the welfare checklist remains an important factor, but will no longer be elevated over other aspects.
The Court of Appeal decision in MK v CK shows that there are going to be cases where relocation will be refused even if the effect on the mother or father is devastating. The greater the role the other parent plays in the children’s lives, the greater will be the damage caused by allowing the relocation.
The decision may also mean a reversal in the recent trend noted by a number of family practitioners for the pendulum to swing too far in favour of the relocating parent, whilst underestimating the detrimental effect upon the child of reducing contact with the other parent.
From now on the judge must exercise discretion to grant or refuse by applying the statutory checklist.
Parents considering relocation or facing a situation where their ex-partner wishes to relocate with their children are advised to seek professional advice on how to tackle the application process.
At Flint Bishop we have a team of highly experienced family solicitors. If you require advice on this or any other area of family law please contact:
|
| |
|
|
|
