Moving on

Although permission to relocate children to another jurisdiction has been refused in several cases in recent years, the tide in favour of granting permission to relocate (almost invariably to mothers) has not been turned to any serious extent. In the great majority of cases, a practitioner asked to advise a father who wishes to oppose an application to relocate will approach the task with a heavy heart.

The relocation jurisdiction has an inbuilt anomaly. The need to apply to the court for permission to relocate arises out of section 13(1)(b) of the Children Act, which requires the leave of the court to remove a child from the UK unless every person who has parental responsibility has consented in writing. Thus, a mother living in Dover needs the leave of the court to relocate to Calais but not to Caithness or Derry. There is also an unresolved question of whether the distinction between internal relocation and relocation to another member state is compatible with the rights of freedom of movement under EU law; particularly if the purpose of the move to another member state is to take up a job or to establish a business.

The leading case on relocation remains the decision of the Court of Appeal in Payne v Payne [2001] EWCA Civ 166. Both Thorpe LJ and Dame Elizabeth Butler-Sloss P were at pains to say that there is no presumption in favour of relocation, and that the authorities since Poel v Poel [1970] 1 WLR 1469 should not be read as if they gave rise to any such presumption. The need to consider the welfare of the child(ren) in the round in each case was stressed. Nevertheless, the court referred to 'guidance' which has proved valuable over the years. There has always been a school of thought that a critical passage of the guidance, in the judgment of Thorpe LJ, amounts to a presumption by any other name: 'Refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.'

Experience suggests that in some courts the guidance is in practice treated as a presumption '“ though, like all presumptions, it is rebuttable.

The first point argued on behalf of the appellant father in Payne was that the Poel approach was inconsistent with the importance which the courts now attach to maintaining contact between the child and the absent parent. This argument was rejected. At that time there was little or no academic research on the subject. In the years since Payne more research has been carried out, and two important contributions to the debate have recently been published:

• A paper presented by Professor Patrick Parkinson at the Australian Family Lawyers' Conference in Fiji in June 2009 summarised research carried out by the Faculty of Law at the University of Sydney in collaboration with a team at the University of Otago in New Zealand.
• A paper presented by Dr Marilyn Freeman at 29 Bedford Row on 7 July 2009 summarised research carried out by the Reunite Research Unit and funded by the Ministry of Justice (www.reunite.org/edit/files/Library - reunite Publications/RelocationReport.pdf).

Both authors freely acknowledge the limitations of their research. Neither sample was very large, though Professor Parkinson says there is no reason to believe that his findings are unrepresentative. Dr Freeman accepts a real possibility of imbalance since disappointed left-behind fathers were more likely to cooperate in the research than contentedly relocated mothers. Nevertheless, the two papers taken together are very valuable and the key points are summarised below.

Diverse approaches

There is a wide range in the approach of different jurisdictions to applications to relocate children. Dr Freeman refers to earlier research in which different jurisdictions are categorised as pro-relocation, anti-relocation and neutral. Unsurprisingly, England falls in the first category. Even different states of the USA fall into different categories. The Payne approach is not followed in all common law jurisdictions.

Even within the same jurisdiction there can be different approaches both in different courts and at different times. Professor Parkinson notes that a change in Australian statute law in 2006 has lowered the success rate in relocation applications, but that the prospects of success in Perth or Melbourne are significantly higher than in Sydney.

Parental distress

As was spelled out in Payne, it is at the heart of the English approach that frustrating the reasonable wishes of a mother to relocate on the basis of a sensible plan may well distress her to the point that the welfare of the children is likely to be affected. However, Dr Freeman cites Dr Mark Berelowitz, the eminent child and adolescent psychiatrist, as saying that no scientific research exists to support the belief that either distress or depression are assisted by allowing relocation. He also suggested that it is happy children who have happy mothers rather than vice versa; and that a more child-centric approach is required. Dr Freeman also reports that not only left-behind fathers but at least one relocating mother expressed the belief that prospective maternal distress is given too much weight by English courts; she regretted having been allowed to relocate.

Dr Freeman further suggests that not enough attention has been paid to the effect on the left-behind father if relocation is permitted. Fathers are frequently given advice which leads them to feel that the system is stacked against them, and on the basis of that advice some abandon their opposition even though they believe relocation to be contrary to the welfare of their children. When relocation has taken place, many fathers experience depression which has led in some cases to alcoholism, loss of employment and thoughts of suicide.

However, some mothers interviewed by Reunite after refusal of permission to relocate also described their shock, sadness and depression at having to remain in a country where they do not want to be, and a consequent inability to get on with their lives. Children who are old enough to understand may also have strong views.

CAFCASS reports

Not all practitioners know that CAFCASS is monitored by OFSTED; or that OFSTED has on a number of occasions been critical of the quality of CAFCASS reports. Many of the Reunite interviewees expressed concerns about the lack of objectivity of CAFCASS officers, saying that they are influenced by the prevailing attitude of the English courts in favour of relocation. This argument was advanced (without success) on behalf of the appellant father in Payne.

Cost and stress of maintaining contact

This is a key problem at the heart of the relocation dilemma and a number of specific points need to be considered. However, the overall conclusions of both studies is that in a high proportion of cases continuing contact has proved highly problematic for a range of reasons and that the relationship with the left-behind father has often been damaged and sometimes obliterated after relocation.

The cost of maintaining contact is a very real problem for many families, especially where the children are of an age where a parent has to travel with them. If the application is contested in court, so much attention is devoted to the binary issue of whether relocation should be permitted or not that the detailed consequences if relocation is permitted (including the true cost of contact in the prospective new situation) are not always fully considered.

Professor Parkinson also draws attention to the cost of relocation disputes. So, a family which has been through a contested hearing will have been financially weakened by: (a) the cost of the dispute; (b) the cost of the relocation; and (c) the cost of maintaining two rather than one households '“ before the cost of maintaining contact can even be considered.

There are also non-financial strains. If the left-behind father travels to, for example, Australia, he will arrive jet-lagged to see children whom he may not have seen for a year and who have settled in an environment and culture which is familiar to them but not to him. If the children travel a long distance, they will be tired and may be returning to a previous home which may have unhappy or at least mixed memories for them at a time when their lives have moved on.

Undertakings and mirror orders

Both reports suggest that when permitting relocation, courts often attach too much value to the conditions which are imposed. Not all countries will grant mirror orders; or, if they do, apply them as the English court might have expected. Many left-behind parents find that it is too easy for the parent who has relocated to ignore or circumvent undertakings which have been given.

In cases to which Brussels II Revised applies, article 9 provides that after the lawful removal of a child to another member state, the state of origin retains a concurrent jurisdiction for three months to modify the contact order. Article 41 provides for the certification of a judgment for contact which will provide for the recognition and enforcement of that judgment in another member state.

However, article 8 confers jurisdiction on the member state where the child is habitually resident, and it may well be that neither article 9 nor article 41 will prevent the member state where a child has become habitually resident from entertaining an application to modify the original contact order to a degree which would preclude enforcement. Dr Freeman (having consulted Michael Nicholls QC) says: 'There is nothing to suggest that enforcement has priority over original jurisdiction.'

However, this remains an unresolved issue which may have to be decided by the ECJ at some point.

Indirect contact

English judges have in some cases treated the advent of email and webcams (in addition to telephone calls) as mitigating a diminution of direct contact, at least in cases concerning older children. However, the Reunite research suggests that this is only the case in practice if such indirect contact is supported by the relocated parent '“ which is far from always being the case.

Dr Freeman and Professor Parkinson both set out the results of their teams' research in a measured way. However, the conclusions which they reach provide ammunition for family lawyers to reopen the relocation debate on a wide front. Even before these two pieces of research became available, rumours circulated that the House of Lords might be willing to review the Payne line of authority; perhaps ideally in a case where there had been expert evidence at first instance on the overall effects of the proposed relocation on the children. Surely the right case will now find its way to the Supreme Court.