If a separated or divorced parent wishes to move to another country without their former partner, they must apply to the courts for permission – an often very wrenching situation for all concerned. Solicitor Laura Guillon takes an in-depth look at one recent case involving Australia
The case of Re TC v JC (Children: Relocation)  EWHC 292 (Fam) involved a mother’s application for permission to permanently relocate with her two young children to Australia.
The mother was an Australian citizen while the father was British However, the father held an Australian residence visa . The couple met in Australia in 2001 and began cohabiting in 2005, by which time they were living in the UK. They married – back in Australia – in April 2006 and subsequently moved back to England in 2010. However, by May 2011 the marriage had broken down and the mother abducted the two children to Australia. At this time the children were 3 ½ and 2 years of age. Long and protracted Hague Convention proceedings started in Australia, which went all the way to an appeal and rehearing. As result, the children were eventually returned to the UK.
Upon her return to this country, the mother applied for legal permission to return to Australia once more with the children. The application was heard over two days in February 2013. This case was different to most relocation cases as the parents had already agreed that the unsuccessful parent would go to live in whichever country the Court decided was best for the children. Cafcass are consulted in most applications under the Children Act applications but were unable to make a clear recommendation despite giving the case a lot of thought.
High Court judge Mr Justice Mostyn was given the task of deciding this case. His carefully reasoned judgement considers the law applied to the issue of relocation and provides a clear summary of the relevant principles. He also refers to Kacem v Bashir  MZSC 112, a recent judgement in the New Zealand Supreme Court
The history of case law in international relocations cases has received some criticism over the years. A detailed explanation can be found in my previous blog post. However, as a brief summary, the first case of note on this was in 1970 and was the case of Poel v Poel  1 WLR 1469. There were various other decisions of the Court of Appeal but the next important case after that was not until the case of Payne v Payne  EWCA Civ 166. Again, a detailed analysis of this case can be seen in my previous blog post, but in summary the case involved the relocation of a child to New Zealand from England. The mother was from New Zealand and the Father was English. The mother argued that moving back to New Zealand would make her happier and that a happy mother was in the child’s best interests. Her application was allowed at the first hearing but the father appealed.
In the Court of Appeal Dame Butler-Sloss was clear in stating that there was no presumption in favour of the mother. However, Lord Justice Thorpe provided the following checklist in his judgment:
Is the mother’s application “genuine” in the sense that it is not “motivated by some selfish desire” to exclude the other parent from the children’s lives? If so, the application must be “realistic” and “founded on practical proposals”, as well as being “well researched and investigated”.
If the point above is satisfied, the count should then consider whether the non-resident father is opposing the application because of a genuine concern for the child’s welfare or for selfish reasons. If the application was granted, the court must consider the effect this would have on the fathercompared to the extension of the child’s relationships with the family and homeland of (in most cases) the mother.
What would the effect be on the mother (either as a single parent or a new wife) if her application was refused?
An overriding review of the child’s welfare is paramount.
This has been heavily criticised as it did seem to create a presumption in favour of relocating when the application was made by the child’s primary carer. It seemed to place too much emphasis on the effect of refusal on the primary carer and also, it was claimed, seemed to express on an outdated view of family life in whichone parent is the primary carer and the non-resident parent is somehow a less important figure in the child’s life.
Payne v Payne was reconsidered in the case K v K (Children: Permanent Removal from Jurisdiction) EWCA Civ 793. The entire jurisprudence was also recently summarised and the modern principles set out in Sir James Munby’s judgement of Re F A (A Child)  EWCA Civ 1364.
Lord Justice Mostyn considers these four cases carefully in his judgement and sets out the current governing principles derived from these cases for a relocation application:
“i) The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.
ii) The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. Such guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.
iii) The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.
iv) The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):
a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?
b) Is the mother’s application realistically founded on practical proposals both well researched and investigated?
c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
d) Is the father’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?
f) To what extent would that detriment be offset by extension of the child’s relationships with the maternal family and homeland?
v) Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted.
vi) There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more that a reflection of the reality of the human condition and the parent-child relationship.
vii) The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue of either the time spent with each of the parents or other aspects of the care arrangements”.
He clearly points out that factor iv) c) of the guidance is always a cause for concern, both in principle and in practice – and is a significant feature in this case too. He previously dealt with this very issue in the case of Re AR (A Child: Relocation)  EWHC 1346 (Fam). In which case he stated the following:
“The problem with the attribution of great weight to this particular factor is that, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions. The core question of the putative relocator is always “how would you react if leave were refused?” The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically. This is the reverse of the Judgment of Solomon, where of course selflessness and sacrifice received their due reward. “
The issue of relocation has never been considered by the Supreme Court, as Justice Mostyn notes in Re AR. However, it was recently been considered by the Supreme Court of New Zealand in the case of Kacem v Bashir and Mostyn J deals with that case in detail in his judgement.
A relocation application in England and Wales is made under section 1 of the Children Act 1989. The equivalents in New Zealand are sections 4 and 5 of the Care of Children Act 2004. The wording of the two acts is different but the paramount nature of children’s welfare and the ‘welfare checklists’ are both essentially the same.
Mostyn states the New Zealand Supreme Court judgement has, “some highly acute observations demonstrating the fallacy of the suggestion that there is, or should be, some kind of presumption in favour of an application to relocate”.
The Supreme Court of New Zealand judgement goes on to deal with the common theme in discussions about relocation – namely that the decisions are often unpredictable, in part due to the discretion given to Judges when deciding such cases. However, Mostyn states that the function of the Judge in making decisions about the future care of a child is not discretionary at all, “at least not in the sense of the Judge making a decision from a range of legitimate solutions none of which can be said to be wrong”.
Mostyn quotes paragraph 35 and 36 from the New Zealand Supreme Court judgement which states the following:
“These and other concerns … are inherent in the exercise in which judges administering ss 4 and 5 of the Act are involved. Lack of predictability, particularly in difficult or marginal cases, is inevitable and the so-called wide discretion given to judges is the corollary of the need for individualised attention to be given to each case. As we have seen, the court is not in fact exercising a discretion; it is making an assessment and decision based on an evaluation of the evidence. It is trite but perhaps necessary to say that judges are required to exercise judgment. The difficulties which are said to beset the field are not conceptual or legal difficulties; they are inherent in the nature of the assessments which the courts must make. The judge’s task is to determine and evaluate the facts, considering all relevant s 5 principles and other factors, and then to make a judgment as to what course of action will best reflect the welfare and best interests of the children. While that judgment may be difficult to make on the facts of individual cases, its making is not assisted by imposing a gloss on the statutory scheme.”
“The literature suggests that there are at least two competing schools of thought about relocation cases generally. There are those who consider relocation should generally be approved, and there are those who think that generally it should not. It is not our purpose, nor would it be appropriate, to express any preference. What is clear is that if there were to be any presumptive approach to relocation cases, it is contestable what that approach should be. This is very much a policy issue for Parliament, not judges. At the moment the New Zealand legislature has not opted for any presumptive approach. That is the way cases must be approached by the courts unless and until legislative change dictates otherwise.”
These paragraphs deal with the issue of the Judge’s discretion and policy. Mostyn states that these explanations demonstrate exactly why presumptions have no place in relocation applications. He therefore starts with “a blank sheet”. He states that his decision is based on factual evaluations and judgement. The questions set out cannot be definitive. They are simply aids to determine the ultimate question which is “what is in the best interests of the children”?
Mr Power, an extremely experienced Cafcass officer, gave oral evidence when the application was heard on 14 and 15 February 2013. He stated that although he had thought long and hard about the case and discussed it with various senior staff in his office, he was still wrestling with where the balance lay.
His report states that, “[t]he qualitative difference I suggest the court can make to these children’s lives is a shared care arrangement and the “line of least resistance” to this, one that does not impose further unwelcome on them would be for their mother to jointly share their upbringing with their father in the UK, which was in effect the status quo before she abducted them. How viable this is, depends in large measure on the evidence concerning immigration advice and other structural issues.
In his oral evidence, however, Mr Power said he was unable to give a clear recommendation. A move back to Australia would involve the children in more change. However, the evidence, particularly the immigration evidence in relation to both parents, suggested that the mother would face greater challenges if it were it decided that the children should remain in England than the father if he was faced with the prospect of moving back to Australia.
Mostyn considered the parents. He agreed with the original judge’s view that the father was an impressive witness. He described him as honest and fair.
The original judge took a less positive view of the mother, but Justice Mostyn did not share that view. It took the mother a considerable amount of time to show remorse for her actions and apologise to the father, recognising that she had not necessarily acted in the best interests of her children by abducting them to Australia. However, she has eventually accepted that she had behaved appallingly and Mostyn decided her remorse and apology were sincere, up to a point.
He considered the Father to be highly confident and self sufficient. He stated that were he to decide in favour of the children moving to Australia he has no doubt the father would have no obstacles in finding employment and a suitable home for him and the children, given that the parties had already decided that they would share care of the children.
By contrast, said Lord Justice Mostyn, the mother was a more fragile character and less well equipped to face the challenges of remaining in England
When making a decision in Children Act proceeding,s the Judge must always have particular regard to the factors mentioned in section 1(3) of the Children Act 1989. This is known as the ‘welfare checklist’ and in summary the following must be considered:
1. The wishes and feelings of the child, considered in the light of their age and understanding.
2. Their physical education and emotional needs.
3. The likely effect on the child of any change of circumstances.
4. Relevant characteristics, uch as age, sex and background.
5. Any harm which the child is at risk of suffering.
6. How capable each parent is of meeting the child’s needs.
7. The range of powers that are available to the court.
Lord Justice Mostyn carefully considered these factors. He did not place any emphasis on the expressed wishes of the children given their young ages. He stated that their physical, emotional and educational needs would be much the same, whether they wre be in Eastbourne in England or Melbourne in Australia.
Given their age he also did not place much weight of the impact of a further change in the children’s circumstances. If they were to move to Australia in the summer holidays he considered both parents would be able to work together to prepare the children for the change, saying any problems adjusting would most likely be temporary.
He did not consider that the children would be at risk of harm if either decision was made. However, he concluded that the mother’s ability to meet their needs could be affected if she was forced to remain in England. She would have to negotiate what the judge describes as, “an immigration labyrinth” for up to a year and would also be exposed to the risk of bankruptcy due to her debts. If she were not able to stay here and had to return to Australia and be separated from the children again in order to make an ‘out of country’ immigration application, the children most likely be affected in a negative way. Even if the Mother was granted leave to remain in England, her position could precarious for as many 5 years and she would be unable to obtain state benefits if she were to lose her job.
Lord Justice Mostyn then turned to the guidance of set out by Lord Justice Thorpe in the case of Payne v Payne. Usually the classic relocation dilemma is that if an application for leave to leave the country is granted it creates a significant geographical separation between the child and the non- resident parent. However, this was not the case here as the parents had already agreed on a joint move to the country favoured by the court. Mostyn formed the clear view that if the mother’s application was not granted it would weigh far more heavily on her than the opposite decision would on the father. He stated that is “the decisive factor which moves me off the knife edge in favour of the Mother’s proposal, which I judge to be the one most in these children’s interests. This is a case where the father is the victim of his own virtues”.
Lord Justice Mostyn clearly wished to leave no room for an argument that there had been a presumption in the mother’s favour. He reiterated that his decision had been based “from first to last on the interests of these children. I must shut out my strong feelings for sympathy for the father at the high handed, selfish and autocratic way he has been treated by the Mother, and I must eschew any temptation to punish the mother for that conduct”.
He ordered the following:
The mother’s application to relocate the children to Australia was to be granted but this will not take effect until an agreed date in the forthcoming school summer holidays.
The children would live with both parents in Australia and their time would be divided equally between them on an alternating weeks during term time and on dates to be agreed during the holdays.
Any disputes about these living arrangements would go before the Family Court of Australia after the family arrived in that country.
If the mother returned to Australia before the move, she would be allowed telephone and/or Skype contact with the children on no fewer than three times a week.
He finishes his judgement with a message that it is difficult to disagree with.
“Child abduction seldom, if ever, have a happy ending. It has rightly been described as a form of child abuse. The Mother’s conduct was abysmal. It was an act of deliberate cruelty to her Husband, the Father of her children. It was directly contrary to the interests of the children for them abruptly to be removed from the society of their Father. It has subjected them to 2 years of uncertainty while they have been taken across the world, back and forth. It has embroiled all members of the family in extensive litigation with days in court in both countries. It has brought the Mother to the brink of bankruptcy. Yet it has not been until very recently that the Mother has developed any self awareness. Her attitude was “I did not abduct them; I just took them home”. This is an all too common attitude but it is as misguided as it is futile. If the place to which the children are taken is a subscriber to the Hague Convention then the children will almost inevitably be returned with all the delay and heartbreak that this case has demonstrated. Had the Mother behaved correctly and made an application for relocation in 2011 then I expect it would likely have been granted, and all that trauma avoided”.
It is difficult to better summarise the feelings involved in child relocation cases. These days it is more and more common for families to live international lives. But from a legal perspective it is absolutely imperative, when one partner in a relationship has moved to another country, that the couple agree in advance what will happen if the marriage or relationship comes to end – especially if they have children!
Parents often assume, if they move to another country, that if things do not work out they can simply return, and do not give anywhere near enough thought to what would happen if one parent wished to remain in the new country while the other wanted to go home. As is clearly demonstrated by this case, years of stress and heartache can follow, especially when one parent makes the unilateral decision to take the children. Few parents realise that this is abduction.
The courts have now clearly moved away from a presumption in favour of giving parents permission to move abroad with their children. Yes, in this case the mother was ultimately successful, but Lord Justice Mostyn’s judgement makes it very clear that there was no presumption either way. He was at pains to point out that the best interests of the children was at the forefront of his decisions throughout the case.
A version of this column originally appeared in www.marilynstowe.co.uk.