RELOCATION AND INTERNATIONAL CHILDREN:
A BETTER DIRECTION FOR CHILDREN
Ann Thomas
The International Family Law Group LLP
Hudson House
8 Tavistock Street
Covent Garden
London WC2E 7PP
+44 20 3178 5668
www.iflg.uk.com
ann.thomas@iflg.uk.com
© February 2013
(Statutory material: (c) Crown Copyright)
Part of these notes are taken from “The International Family Law Practice” (Jordans) by David
Hodson, with acknowledgments to Jordans
www.iflg.uk.com
© February 2013
ABOUT THE SPEAKER
Ann Thomas is a solicitor, civil and family mediator, a trained collaborative lawyer and the
Managing Partner at iFLG. She is recognised as a leading international children lawyer
particularly in the area of child relocation. Ann handles all aspects of family law, including
complex financial issues arising from the breakdown of a relationship. She handles high net
worth financial cases, often involving partnerships, companies and trusts. She regularly advises
on prenuptial agreements and cohabitation issues. Many of Ann's family cases have an
international element.
She is an advanced accredited solicitor (The Law Society's Family Law Panel) in international
family law and children.
She is a member of the lawyers network of Reunite, the leading UK charity specialising in
international parental child abduction and which provides advice, information and support to
parents, family members and guardians who have had a child abducted or who fear child
abduction.
She is a Fellow of the International Academy of Matrimonial Lawyers. She is past chair of the
International Committee and a past member of the London Regional Committee of Resolution
(formerly known as SFLA). Ann is former chair of the Family Law Steering group of LawNet and
former President and founder of the Eurojuris International Family Lawyers Practice Group
whose headquarters are in Brussels. She is a member of The International Bar Association and
the Institute of Directors.
She has written a number of articles on the recent developments in family law and has also
presented seminars on international aspects of family law in this country and in other European
countries. Ann has written the chapter on relocation international child issues in the International
Family Law Practice by David Hodson (published by Jordans) and the chapter for practitioners
on relocation cases for Resolution’s latest publication of Practical Aspects of International Family
Law. She is co-author (with David Hodson) of When Cupid’s Arrow crosses National Boundaries
(2nd edition). Ann also regularly lectures to the legal profession both in this country and abroad.
She has recently been involved in training family Judges in Serbia in the Hague Convention and
international family law.
Ann is often asked by the media to comment on topical issues in family law. She has been in a
number of high profile reported cases.
She has been Partner and Head of the Family Department of a Mayfair firm and previously was
Head of Department at a large regional firm in Cambridge
The International Family Law Group LLP is a specialist law firm providing services to the
international community as well as for purely national clients. iFLG has a special contract with
the Legal Services Commission for child abduction work and is regularly instructed by the UK
Government (Central Authority). It acts for international families, ex pats and others in respect of
financial implications of relationship breakdown including forum shopping and international
enforcement of orders. It receives instructions from foreign lawyers and, as accredited
specialists, acts for clients of other law firms seeking their specialist experience.
iFLG is situated in Covent Garden near the Law Courts. Its mobile telephone accessible website
includes valuable information, podcasts, a government approved child abduction questionnaire
www.iflg.uk.com
2
© February 2013
and formulae as a starting point for calculating fair financial settlements. It has emergency 24
hour contact arrangements. Contact at www.iflg.uk.com.
Overview
In very many cases, when parents separate, the mother becomes the primary carer because she
has undertaken this role from birth and the father becomes the primary breadwinner. If the
mother decides to relocate, her application is very often stacked in her favour under the present
law because of the simple convenience of these roles which, in many cases, have been in train
for a good number of years prior to the proposed breakdown in the relationship.
The child’s interests are much wider at the time of the relocation than they may have been at the
time of separation in terms of who should be the primary carer, the binary choice. Often at
separation, the child will continue in the same school, locality near friends and relatives and
maintain recreational activities. On relocation, the child has the prospect of severance from
perhaps an entire educational system, language, culture, friends and wider family. These should
form the child’s best interests, not just who at that time is the primary parent. The continuity of
the relationship with just one parent must be (and often is not) set against the discontinuity with
many other stabilising and important features of a child’s life.
This paper will analyse those wider issues of relocation, in the context of conventional
understandings of the child’s best interests, the human rights of both the adult parents and the
child, the concerns of the wider family members, the significant prior involvement of the left
behind parent, the psychological impact on a child of geographical relocation and will argue for
an importance of an international consensus.
Introduction:
The need for a global consensus in the face of very different national positions
There is a real requirement over the coming years for some international convention or practical
harmonising principles of international relocation.
Relocation law and practice is inevitably international. Children are returned to another country
after a child abduction either under the Hague Convention or under national laws with a degree
of confidence that there will be reasonable opportunity to apply to relocate after the child has
been returned. If this confidence does not exist, there will be an increasing lack of willingness to
make such return orders. So some degree of harmonisation internationally between countries is
essential for the benefit of international child abduction legislation.
Recognition of cross-border orders also requires confidence between countries in the policy and
criteria for the relocation.
There are some countries which have seemed to be very liberal or very restrictive in relocation
cases. England has had a very liberal approach. By and large, provided there was no obvious
intention to relocate to prevent the other parent having a relationship with the child and provided
reasonable and carefully considered plans could be demonstrated to the court for the relocation
then permission would be given. This was the leading decision of Payne-v-Payne. It is only in
the past 12 months or so, following the decision in CK –v- MK, that it has become more
restrictive with the emphasis being on the welfare of the child and a greater weight being given to
www.iflg.uk.com
3
© February 2013
the to the involvement of the non-primary residential parent in the life of the child. I expand on
this later.
But the need for reform in England is so great and unanimous that we cannot wait for the
diplomatic politics of international consensus. Change must come now.
So what principles should inform any new law? I argue for a greater weight to be placed on the
best interests of the child being found in stability and continuity of home, education, community,
culture and wider family rather than the relationship abroad with just one parent.
The problems with the English position and initiatives for change
So what has been happening in England?
It is openly acknowledged that the relocation law in England has been in the perception of many
lawyers in England and abroad, very unsatisfactory of a number of years. It was outdated given
the role fathers now have in the lives of their children.
We start with the case of Poel in 1970 which was then endorsed in the leading case of Payne in
1997. Perhaps a flavour can be found in the comment in Payne where LJ Thorpe still favoured
the mother in her application to relocate and specifically said:
‘Thus in most relocation cases the most crucial assessment and finding for the judge is likely to
be the effect of the refusal of the application on the mother's future psychological and emotional
stability.’
The Court of Appeal held that although a refusal of a primary carer’s reasonable proposals for
the relocation of the family life was likely to impact detrimentally on the welfare of her dependent
children, this did not amount to a presumption in favour of the primary carer; and the welfare of
the child was always paramount.
It held that the reasonable proposals of the parent with a residence order wishing to live abroad
carried great weight: those proposals had to be scrutinised with great care. The court gave
guidelines.
Subsequent case law has confirmed these guidelines and we have seen an elevation to these
guidelines almost to legal principles. This was never envisaged in Payne. There has been much
criticism from lawyers and particularly the father's lobby calling for reform of both national law
and in the creation of international law.
In September 2005, a debate at The Law Society on the motion ‘leave to remove is too easily
granted’ was easily carried.
In July 2009 the Centre for Social Justice (CSJ) produced its ground-breaking report on reform
of family law, “Every Family Matters” and said:
“Currently the resident parent has disproportionate ‘rights’ in this area, with their desire to move
away being the sole or primary consideration. This accords with what many see as the outdated
notion that the child has one psychological parent, and the continuation of living with them best
serves the interests of the child.”
www.iflg.uk.com
4
© February 2013
The CSJ recommended that all those with parental responsibility shall be presumed to have an
equal status in their children's lives following separation unless the contrary was shown and an
additional principle namely that children are most likely to benefit from a “substantial
involvement” of both parents in their lives, subject to the need to protect them from abuse,
violence or continuing high conflict. The recommendations have been well received and
supported in many quarters. The principles would be the starting point and provide guidance
where it is currently lacking as to how the non-resident parent can be factored into the decisionmaking process as regards relocation.
In July 2009, REUNITE published a Report on relocation research (funded by the Ministry of
Justice). Dr Marilyn Freeman said:
‘Generally, it was felt that children are not well served by the current relocation system and that
insufficient attention has been paid, to date, to the effects of relocation on the child. At the same
time, the over-emphasis on the happiness of the mother means that the system is apparently
stacked against fathers, even custodial fathers, who feel that they suffer a serious legal injustice
through the relocation system in this country.’.
On 25 March 2010, the Washington Declaration on International Family Relocation was made,
when more than 50 Judges and other experts from around the world met to discuss cross-border
family relocation. The Washington Declaration was not intended to be conclusive but to
stimulate an international debate on international relocation. It was also hoped that it would be
developed in the future work of the Hague Conference in that the principals governing the
outcome of relocation applications should be uniform throughout all parties to the 1980
Convention.
At the end of the three day Conference, the following had been agreed:
1.
States should ensure that legal procedures are available to apply to the competent
authority for the right to relocate with the child. Parties should be strongly encouraged to
use the legal procedures and not to act unilaterally.
2.
The person who intends to apply for international relocation with the child should, in the
best interests of the child, provide reasonable notice of his or her intention before
commencing proceedings or, where proceedings are unnecessary, before relocation
occurs.
3.
In all applications concerning international relocation the best interests of the child should
be the paramount (primary) consideration. Therefore, determinations should be made
without any presumptions for or against relocation.
4.
In order to identify more clearly cases in which relocation should be granted or refused,
and to promote a more uniform approach internationally, the exercise of judicial discretion
should be guided in particular, but not exclusively, by the following factors listed in no
order of priority. The weight to be given to any one factor will vary from case to case:
www.iflg.uk.com
5
© February 2013
i)
the right of the child separated from one parent to maintain personal relations and
direct contact with both parents on a regular basis in a manner consistent with the
child’s development, except if the contact is contrary to the child’s best interest;
ii)
the views of the child having regard to the child’s age and maturity;
iii)
the parties’ proposals for the practical arrangements for relocation, including
accommodation, schooling and employment;
iv)
where relevant to the determination of the outcome, the reasons for seeking or
opposing the relocation;
v)
any history of family violence or abuse, whether physical or psychological;
vi)
the history of the family and particularly the continuity and quality of past and current
care and contact arrangements;
vii)
pre-existing custody and access determinations;
viii)
the impact of grant or refusal on the child, in the context of his or her extended
family, education and social life, and on the parties;
ix)
the nature of the inter-parental relationship and the commitment of the applicant to
support and facilitate the relationship between the child and the respondent after the
relocation;
x)
whether the parties’ proposals for contact after relocation are realistic, having
particular regard to the cost to the family and the burden to the child;
xi)
the enforceability of contact provisions ordered as a condition of relocation in the
State of destination;
xii)
issues of mobility for family members; and
xiii)
any other circumstances deemed to be relevant by the judge.
5.
While these factors may have application to domestic relocation they are primarily
directed to international relocation and thus generally involve considerations of
international family law.
6.
The factors reflect research findings concerning children’s needs and development in the
context of relocation.
7.
It is recognised that the Hague Conventions of 1980 and 1996 provide a global
framework for international co-operation in respect of cross-border family relocations.
The 1980 Convention provides the principal remedy (the order for the return of the child)
for unlawful relocations. The 1996 Convention allows for the establishment and
(advance) recognition and enforcement of relocation orders and the conditions attached
to them. It facilitates direct co-operation between administrative and judicial authorities
between the two States concerned, as well as the exchange of information relevant to the
child’s protection. With due regard to the domestic laws of the States, this framework
www.iflg.uk.com
6
© February 2013
should be seen as an integral part of the global system for the protection of children’s
rights. States that have not already done so are urged to join these Conventions.
8.
The voluntary settlement of relocation disputes between parents should be a major goal.
Mediation and similar facilities to encourage agreement between the parents should be
promoted and made available both outside and in the context of court proceedings. The
views of the child should be considered, having regard to the child’s age and maturity,
within the various processes.
9.
Orders for relocation and the conditions attached to them should be able to be enforced
in the State of destination. Accordingly States of destination should consider making
orders that reflect those made in the State of origin. Where such authority does not exist,
States should consider the desirability of introducing appropriate enabling provisions in
their domestic law to allow for the making of orders that reflect those made in the State of
origin.
10.
Authorities in the State of destination should not terminate or reduce the left behind
parent’s contact unless substantial changes affecting the best interests of the child have
occurred.
11.
Direct judicial communications between judges in the affected jurisdictions are
encouraged to help establish, recognise and enforce, replicate and modify, where
necessary, relocation orders.
12.
It is recognised that additional research in the area of relocation is necessary to analyse
trends and outcomes in relocation cases.
13.
The Hague Conference on Private International Law, in co-operation with the
International Centre for Missing and Exploited Children, is encouraged to pursue the
further development of the principles set out in this Declaration and to consider the
feasibility of embodying all or some of these principles in an international instrument. To
this end, they are encouraged to promote international awareness of these principles, for
example through judicial training and other capacity building programmes.
In June 2010 a major conference held by the Centre for Family Law and Practice at the London
Metropolitan University supported an international convention or protocol for relocation cases
and much criticised the English approach. In respect of the international relocation of children,
there were the following conclusions and resolutions
The London Conference, in addition to considering the issues of International Child Abduction
and Forced Marriage, has been the third phase in an on-going effort to achieve greater
international consistency in the approach to cross-border relocation disputes: the first phase
being The International Family Justice Judicial Conference for Common Law and
Commonwealth Jurisdictions, Cumberland Lodge, Windsor, England, 4th to 8th August 2009; and
the second The International Judicial Conference on Cross-Border Family Relocation,
Washington D.C. United States of America, 23rd to 25th March 2010.
1. Common international Framework

We endorse the approach recorded in the Washington Declaration on
International Family Relocation, March 2010, and agree that in all applications
www.iflg.uk.com
7
© February 2013
concerning international relocation the best interests of the child should be the
paramount (primary) consideration and determinations should be made without
any presumption for or against relocation.

We accept that an unfettered discretion in the judiciary leads to unpredictability
and a lack of uniformity in decision-making and we support the development of a
common international framework to guide the exercise of judicial discretion.

We would like to see proposed and debated at the sixth meeting of the Special
Commission to review the operation of the 1980 Child Abduction Convention (the
Abduction Convention) and the 1996 Hague Child Protection Convention the
introduction by International Instrument or otherwise of a common framework for
resolving disputes relating to the international relocation of children.
2. The Voice of the Child

We agree that in reaching decisions regarding the international relocation of
children, the child’s voice must be heard, taken into account, and given
appropriate weight.
3. Enforcement of Orders

Provisions contained in an order permitting relocation which are designed to
sustain the relationship between a child and a parent should be respected in the
destination country.
4. Mediation

The voluntary settlement of international relocation disputes, achieved where
necessary with the assistance of skilled professionals, should be promoted.
5. Research

Having regard to the pressing need to guide and inform families, policy makers
and judges, this conference endorses the resolutions of both the Windsor
Conference (August 2009) and the Washington Declaration on International
Family Relocation (March 2010) that additional research in the area of relocation
is necessary to analyse trends and outcomes in relocation cases.
In mid-2011 in a case of CK v MK, the Court of Appeal seemed to give a very strong change of
direction to English relocation law. Admittedly in a case where there was a shared residence
order indicating a much greater involvement than usual by the non-primary residential parent, it
said in terms that much greater weight must be given to the welfare of the child. It was a clear
signal that a shift was occurring away from the primacy of the wishes of the primary residential
parent to agree to reflection of the overall best interests of the child. Only time will tell what will
be the longer term impact of this decision but it is perceived as bringing England closer to many
other Western jurisdictions.
In the meantime, jurisdictions used to working closely together must encourage organisations
such as the Hague Conference on Private International Law to find some international
www.iflg.uk.com
8
© February 2013
consensus for what is the best interests of the child in the context of an application by one parent
to relocate abroad permanently.
Child abduction has been very successful internationally. There is the most important of
international laws namely the Hague 1980 child abduction Convention. This is backed up by the
Brussels II Regulation, within Europe, and now the 1996 Hague Convention. Yet relocation has
no international consensus. It is an area desperately in need of international collaborative
assistance
Through the eyes of a child
With the acknowledged recognition of the benefit to children of both parents having a significant
involvement in their life, the burden should be well and truly on the parent seeking to relocate to
show the benefit to the child of the move. This would directly have to address of course, as at
present, the impact on the other parent. It would also and crucially more widely address the
huge and life changing impact on the child of a removal from wider family, home environment
and community.
There would be much greater recognition of the impact of moving to a country with perhaps a
very different language, different culture, different educational system, different health
expectations and so many other features. As a corollary, there would be much greater
recognition on the child, psychologically, emotionally and for his development, of this removal
from an educational system, from all of his friends and peers, from wider family such as
grandparents, uncles and aunts and cousins, and from other close affinities and associations
such as sports, hobbies and other activities.
If then at a time of a proposed international child relocation by one parent, the other “left behind”
parent has a close bond with the children and can offer a home and reasonable parental care in
the same home environment for the children then the burden should shift significantly to the
parent who seeks to relocate to show that it is not in the children’s best interests for them to
remain with the non-relocating parent.
A significant weight should be attached to the parent not wishing to relocate but offering to take
over the role of primary carer of the children. This would maintain the geographical status quo
for the children by providing continuity for the children and stability in their development and
upbringing.
By placing the burden on the parent seeking to relocate, it will undoubtedly cause some parents
who seek to relocate for lifestyle reasons to reflect on the choice. Nothing can deny the pain and
anguish for a mother having to decide between the children in one location and perhaps a new
partner, boyfriend or indeed husband in a faraway location. However this anguish should not be
for sale for the relocation to be merely accepted. Parenthood carries sacrifices. Too often the
primary carer has not been expected to make lifestyle sacrifices whereas the secondary carer
has been compelled to make sacrifice of an involvement in the life of his child.
Case law on international relocation has adhered too rigidly and for too many decades to the
historic binary choice of one or other parent with whom the child should primarily live. Not only
has the non-primary residential parent, often the father, been served very badly over the years
causing much grief and unfathomable distress, it has also badly served the best interests of the
child who has found himself taken from his home environment, wider family, schools, language,
friends and everything that he has known throughout his upbringing and placing him into a very
www.iflg.uk.com
9
© February 2013
different environment, comforted only by the presence of the primary residential parent. The fact
that the child has to go through the trauma of having to leave behind all he knows because he
lives with the parent who wishes to relocate through what is so often an accident of biology and
past economy should and for that parent then to have an advantage because she is the primary
carer, is thoroughly unfair and should not carry such weight in international relocation cases.
Relocation law should be reformed to make it clear that it is in the best interests of the child that
both parents should have a significant involvement in their life. In this way, the court will start
with an expectation that there should be continuity of enjoyment by a child of a relationship with
both parents which can rarely occur with international relocation.
Relocation law should expect that if the primary carer parent seeks to move abroad and yet the
other parent is able to offer satisfactory upbringing and enable the child to maintain continuity in
his home environment then that other parent should have the first opportunity to maintain that
continuity. This must be in the child’s best interests. Only in circumstances where that parent is
unable or unwilling to provide satisfactory upbringing and continuity for the child should the
relocation then be contemplated and permitted.
Too often the child has been allowed to move to a country and yet the child has lost not only a
good relationship with the other parent but also lost his roots and his source of nurturing and
development over his short lifetime.
Too often also, a parent puts a child through the immense trauma of a relocation and turns the
child’s world upside down, for what she says are in the child’s best interests when, in reality, they
are her own. If the relocation does not work out or if her relationship or job does not work out as
she had hoped and convinced the court, she will then, as she perceives it to be in the best
interests of the child, seek to return without much of a second thought for the child. Her primary
motive is then to return to the arms of her family and forms support network arguing that the
child can be reunited with his peers, relatives, return to his old school and his ‘left behind’ parent.
This is therefore no less than a second relocation trauma for the child and yet another disruption
to his education, his new life. Interestingly, the mother will probably argue she will be isolated in
the country where she relocated if she does not return and the emotional effect of staying in the
new country would be immense. How interesting that this is often the same argument upon
which she relied when she wanted to seek permission to relocate. In whose interest therefore is
it? Should the parent wishing to relocate not be going alone to see if her new life in the new
country is all that she promised it would be?
If a father has a close bond with the children and he has been an integral part of their lives since
separation, the court should first look to whether the father can offer a home to the children.
Then, if necessary, it should obtain a report to consider this aspect. Much caution must be
exercised in how much weight is placed on the voice of the child in relocation cases as a child’s
wishes and feelings to move to another country (sometimes in support of the mother’s case) can
be based solely on memories of a fantastic holiday and very little more. The concept of
permanence and day to day routine in a child’s life is not an easy one to for them to grasp. If the
child has become integrated into its new life with step siblings, this may be a different matter but
where there are no other children to consider but those of the family, the court should be
required to look first at what the father (the proposed left behind parent) can offer to maintain the
status quo for the child and preserving the life, the friendship groups, the extended family and the
love, the children have known throughout their short lives.
www.iflg.uk.com
10
© February 2013
Towards some international priorities
In each jurisdiction, International children cases including relocation cases should be dealt with
only by a small group of experienced, higher level and specialist judges. This should overcome
the perception of significant discrepancy between outcomes
There should be international consensus on the availability of relocation, it's opportunity in all
circumstances including to non-nationals, of the difficulties presented for the primary caring
parent away from any financial support or other recognised securities and provisions, and yet
conscious of the interests of the child
International contact arrangements, both generally and also following a relocation, must be
certain and internationally enforceable, and must be mutually supported and respected by the
country to which the relocation is allowed, and not vulnerable to the vagaries of national law and
process
Although most countries proceed on the best interests of the child criteria, this is interpreted very
differently. For some, including England for very many years and perhaps on-going, it has been
perceived as the best interests of the child are to remain with the primary caring parent who
would be given leave to relocate unless very good reasons to the contrary. For some the
opposite extreme, it has been immensely difficult for the primary caring parent to gain permission
to leave a country even if she has very little support of any form, may be subject to financial
hardship or domestic abuse, and especially if she is a non-national. These parents come in
effect land locked for the minority of the child. How can we produce some consensus?
Significant research has been undertaken and is on-going, especially Prof Patrick Parkinson in
Australia and Prof Marilyn Freeman in England.
They highlight the dramatic and
disproportionate legal costs of relocation disputes, the long-term impact on future parenting, and
the loss of the involvement of one parent in the upbringing of the child, the rate of unsuccessful
relocations causing a fairly quick return and other significant aspects. The research should be
more widely available
One of the most troubling elements of relocation work is the disproportionality of costs. This is
not big money forum shopping. These are often modest families, sometimes relatively poor
families, having to engage in substantial heavyweight and therefore heavy cost litigation.
Research in Australia and England has shown that the total costs can be a significant proportion
of the overall wealth of the parties. Properties have to be sold. Any prospect of private
education disappears. The opportunity to pay for international travel for the purposes of contact
is lost.
Yet these are important issues which have to be considered carefully by a judge of appropriate
experience and authority and after a full investigation. They cannot be skimped or prepared
badly. It is grim news in having to say to a client about the costs of making the application or
opposing it. We have no professional choice but to do so
In financial proceedings in England, there is an early neutral evaluation by a judge before the
worst of the costs are incurred for a final hearing. Most cases thereby settle. I have
recommended a similar process where a judge gives an early neutral evaluation of the likelihood
of success. Perhaps this will stop some cases and prevent some ridiculous costs being
unnecessarily incurred
www.iflg.uk.com
11
© February 2013
However ultimately and irrespective of national laws, surely our countries and our international
gatherings can find some summary form of resolution, some common understandings in working
out the best criteria for relocation outcomes rather than simply each country recasting their own
perception in their own national eyes of the best interests of the child, and some mutuality of
support for the relocation orders made in other countries.
Ann Thomas
Partner
The International Family Law Group LLP
www.iflg.uk.com
ann.thomas@iflg.uk.com
© February 2013
www.iflg.uk.com
12
© February 2013