Relocation in Family Law

Case Study

Relocation cases tend to be less common in the family courts. The law tends to be complex. Yet, more than a third of children born in England and Wales have one parent with a different nationality. As the world is becoming increasingly internationally mobile, cases are on the increase. Proceedings are highly emotive because the outcome is binary. There is no middle ground or compromise. The children either get uprooted or they do not. It has a huge impact on the ‘left behind’ parent’s relationship with the child.

In a typical scenario, the party wishing to move, must have consent of the other parent prior to relocation. It is a criminal offence to remove a child out of the jurisdiction otherwise.

Mediation or arbitration should be considered before involving lawyers or making an application to the court. Although it is a difficult issue to compromise on. However, it would be wise to consider an alternative creative option supporting the existing child arrangement routine. If there is a reasonable ‘flight-risk’ the English national parent could seek a Prohibited Step Order from the courts preventing it to happen.

Before fling a court application for permission to remove the child, parties will be expected to attend a MIAM – Mediation Information Assessment Meeting (exemption applies). Once the MIAM requirement is completed parties can proceed to submit a court C100 application costing a fee of £215.

Both parties will need put their child’s welfare at the forefront of their applications or reasonings. The following important factors must be clearly considered within their statements to the court:

  1. Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the child from the other parents’ life?
  2. Is the application realistically grounded on practical proposals both well researched and investigated?
  3. What would be the impact on the applicant of a refusal of her realistic application?
  4. Is the respondent’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
  5. What would be the extent of the detriment to the ‘left-behind’ parents and his/her future relationship with the child were the application granted?
  6. To what extent would that detriment be offset by extension of the child’s relationships with the applicant parent’s maternal family and homeland?

Once received by the court they will list the matter for a First Hearing Dispute Resolution Appointment (FHDRA). The respondent will receive a copy of the application and notice of the hearing date. Once at the FHDRA, the court investigates the issues as well as considering the parties positions. Is there a possibility of settlement? If not they will give directions on how to proceed the case. Cafcass (Social Services) will usually be instructed to produce a well-fare report. A second court hearing follows in the form of a Dispute Resolution Appointment. At this stage the aim is to narrow and resolve key issues. The Cafcass report will be considered in this hearing and the opinion of the case worker is often a deciding factor to the outcome of the proceedings. At the final hearing, parties along with expert witnesses must attend and give evidence. It is at this point that the Judge makes a final order, either granting relocation or not.

The judge will apply the ‘welfare checklist’ before making an order, considering the following factors:

  1. the ascertainable wishes and feelings of Rupert (however, given Rupert’s young age, he will have very limited – if any – understanding of Sally’s application and the decisions that the court have been tasked to make on his behalf);
  2. Rupert’s physical, emotional and educational needs;
  3. the likely effect on Rupert of any change in his circumstances;
  4. Rupert’s age, sex, background and any characteristics of his which the court considers relevant;
  5. any harm which Rupert has suffered or is at risk of suffering;
  6. how capable Sally and Harry is of meeting his needs;
  7. the range of powers available to the court.

In summary

Presentation of evidence and well thought out plans are of paramount importance in these kinds of proceedings. The applicant will need to show that he/she will be financially and emotionally better off in the new country. Focus should be on the reasons for returning to the ‘home’. Equally important, realistic considerations for maintaining contact with the other parent must be fully demonstrated.

As a Mckenzie Friend we cannot perform litigation on your behalf. However, we can advise you on how to communicate with the other party’s solicitor as well as show you how to best put together your court documents. The Cafcass key worker will play an important role in your case. We show how to interact with them by focusing on what issues and concerns are important for you to communicate. Relocation cases are finely balanced, and you must apply thorough consideration to both what is said, done and written. The process can be highly emotional. That is when we excel, by giving you the much-needed coaching and support you deserve.