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Relocation of Children - Part 2

In the second part of her two-part review of relocation law, Clare Renton of 29 Bedford Row looks at the practicalities of relocation cases, both international and domestic.

 Clare Renton, Barrister, 29 Bedford Row

Clare Renton, barrister, 29 Bedford Row

The first part of Clare's article appeared last week. To read it, click here.

As Head of International Family Justice, Thorpe LJ is of the view that relocation applications should be considered at High Court level. Given the number of applications annually, that is not feasible. Many relocation applications are heard by circuit judges and some are heard by district judges at the PRFD. An application for transfer up to the High court is unlikely to succeed.  There is usually no right and wrong answer in these cases. Instead there is a dilemma.

Expert evidence
It has always been difficult to obtain leave to adduce expert evidence (other than a CAFCASS officer) in relocation cases on the impact / loss to a child of their relationship with the parent who will be left behind. In Re AR (A Child: Relocation) [2010] EWHC 1346 Mostyn J had before him evidence from a psychiatrist of the impact of refusal on the mother. It was not very cogent and did not affect the outcome. Many practitioners would have resisted its admission. If, for example, a child is under CAMHS and the evidence was not obtained to bolster the case but is  part of ongoing consideration of the child's interests by the  local team it will be admissible in some form.  There is no direction or guidance in the Court of Appeal or the Family Division.

Wishes and feelings
The Family Justice Council has produced guidelines for judges meeting children [April 2010]. In short the judge's function is not to elicit evidence but to help the child feel that their views have been heard. In June 2010 the author invited the judge to see two articulate girls, aged 10 and 12, who were very keen to be heard. At that stage it seemed likely that the judge would not make an order for relocation in accordance with their expressed wishes and therefore it was desirable for that reason alone that they be listened to. The judge saw the children with a CAFCASS officer present (at short notice). The questions he proposed to put to the children were ventilated in court in advance.   A point may often be made that the child has no conception of what it would be like to be separated from his other parent and his habitual environment for more than a short time. He will usually reflect the wishes of the parent with whom he lives. It is all very well to assume that a child is resilient and will adapt readily to a change but this is speculative. When questioning a CAFCASS officer, it is important to elicit the underlying facts underpinning her opinions. Where is the evidence? How can he or she know or predict?   CAFCASS officers may sometimes stray beyond the area in which they are trained and take into account distorted information fed to them by one party.

The 2009 research
Professor Patrick Parkinson at the Australian Family Lawyers' Conference in Fiji in early June 2009 summarised the first part of research carried out by the Faculty of Law, University of Sydney, in collaboration with a team at the University of Otago in New Zealand.  Dr Marilyn Freeman carried out research for Reunite Research Unit and funded by the Ministry of Justice. Neither sample was large, though Professor Parkinson says that there is no reason to believe that his findings are unrepresentative. Dr Freeman points out that, when eliciting information from parents who have been involved in relocation, those for whom the effect of relocation has been negative are more likely to respond to requests for interviews than others. Professor Parkinson, one of the principal architects of the radical overhaul of Australian family law in 2005, acknowledges that the Sydney research represents the first stage in a long-term longitudinal study, and that the findings reported in his paper must be seen as preliminary. Both authors, have cooperated with each other, and drawn on other research. Their conclusions are similar. Many practitioners find that these also confirm their own experience.

In a recent case where some of the points highlighted below were made to the judge by reference to the research, the judge responded: "A matter of commonsense I should have thought". However, until now it has been difficult to persuade many judges of the importance of these points in the total welfare assessment exercise because of the significant emphasis traditional case law has placed on the impact of the mother of refusal of grant of leave. The risk that a child lacks the resilience to adapt to the new life and lack of frequent regular contact with the other parent is considerable. In a recent case where the author was instructed for the father, the mother gave evidence, saying: "I  am sure our child aged 3 is resilient and will get used to not seeing her father more than once every three months. I know my child better than anyone. She was fine last summer when I was away for two months".  In that case the CAFCASS officer formed the clear view that the mother was not committed to contact at all and that the proposed dislocation of shared care arrangement created an unacceptable risk to the child's emotional development. Leave to relocate to France was refused.  

Research summary

The rest of the world: lack of consensus 
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. 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. It should be noted that in Australia parents wanting to relocate within the country are likely to be facing the same test as those seeking to relocate externally. 

England is categorized as pro location, New Zealand against.

Is contact so important?
The first point argued on behalf of the appellant father in Payne v Payne [2001] EWCA Civ 166 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. Even in the years since Payne the importance of maintaining positive relationships with two parents is more widely acknowledged.

Losing Touch   
The researchers confirm what many have suspected: after relocation a large proportion of fathers lose touch with their children.

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 households rather than one, before the cost of maintaining contact can even be considered In practice, the costs of travel to the new home state often make contact impossible. Even if the cost seemed feasible at the time of the court order, life moves on and a father may be torn between prioritising his new family unit and setting aside enough money for contact arrangements.

The contact    
For children of many age groups, seeing a parent again after, say, 6 months can feel strange. The relationship is so dislocated that it is barely meaningful. Even though quality time rather than quantity time are still recognised as needed, the impact of the interruption of contact routines is great. Contact in the new home state of the child can be thwarted readily. A father who has travelled for 24 hours to see his child only to find barriers to meaningful contact, will find it very hard to persevere. Good fun at an exotic location does not reflect the reality of life with that parent.

Travel time
The impact of travel on the child can be a great strain, as Professor Parkinson points out. For many children even a 4 hour journey, each way, to Italy or Belgium is an exhausting experience. The child can become neutral or even hostile to international contact because of the strain. The child contemplates a long dreary journey, a barely recalled environment, unfamiliar relationships.

Indirect contact     
Indirect webcam contact is difficult for many young children even if the relocated parent cooperates. Even if the child does sit still in front of the camera, the interaction is a poor substitute for physical presence.

Obtaining leave: the trial process
The intending relocator pays lip service to a desire to contact. It is often hard to show that the commitment is thin. In practice it often evaporates quickly. The relocated parent, sometimes deliberately, undermines the relationship with the left behind parent.

CAFCASS officers assist the court in an environment which is known to be under pressure from underfunding. However the methodology of some CAFCASS officers has been open to criticism in the past by Ofsted. The task of assessment is difficult. In Payne v Payne the CAFCASS officer had formed a view of the relevant law after obtaining a set of notes made by a colleague at a seminar she had not attended. Some CAFCASS officers have directed the thrust of their inquiries in a direction which is not fully child centric, with insufficient focus on the practical problems and the adjustments required of the child in a new state.

Undertakings and mirror orders
Both reports suggest that when permitting relocation, courts often attach conditions which are ineffective. Not all countries will grant mirror orders or, if they do, they are not applied as one might hope. 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 non-EU cases the English court will often have no power to enforce the undertakings and the court of the country of relocation may take a different view.

Happy children have happy mothers? 
The relative importance of thwarting the parent seeking relocation and the impact of a radical change in the child's existing contact arrangements is difficult to assess. In her statement the applicant mother will often assert that she would be "devastated" if leave were refused. The mother sits in court, ashen faced, as the judge will notice. Lack of any medical evidence that she would, if refused leave, suffer such distress that it would impact on her parenting abilities is no bar to a decision in her favour with this point central to the judgment. Dr Mark Berelowitz in the Resolution debate of September 2005 pointed out that there is no evidence that relocation is a cure for depression. Neither was there evidence of the impact on a child of "sub threshold depression" ie distress and disappointment. In reality relocation creates new stresses and strains for all, whilst placing a child in a new situation with the loss of much of what is familiar.  

The mothers who are refused permission to relocate do usually come to terms with their disappointment. A few told the researchers that they were glad they had not moved or that the relocating parent returned to the original state. Quite simply the grass had not been greener.

Meanwhile the accepted wisdom that "Happy mothers have happy children" may need to be revisited. Should there be a more child centric approach? Perhaps we should assume as did one mother who regretted relocation: "Happy children have happy mothers".

A word of caution
The Reunite report suggests that contact proposals in relocation applications are often over-optimistic, and that a greater focus on maintaining contact may be needed in relocation applications. These suggestions have not been universally accepted. Criticism was levelled in Family Law (March 2010) by  Frances Judd QC:

'It is difficult to see how meaningful conclusions about the state of relocation law in general can be drawn from a study which looks almost exclusively at the views of only one constituent group, particularly one made up predominantly of parties who have been unsuccessful in court.'

Internal relocation
Internal relocation is important if an established regime of care is dislocated. In that situation a parent may resist an application by one parent to alter the contact or shared care arrangements. In Australia, where the distances are great, internal relocation is a common issue.  In England a prohibition on internal relocation is still very unusual.

Re G (Contact) [2006] EWCA Civ 1507, [2007] 1 FLR 1663: The parents lived in Australia and decided eventually that they would return to England after the marriage broke down. They obtained an order from the Australian court permitting the wife to bring their 10 year old son to England and have him reside with her, providing for contact to the father and specifying that the child must attend a particular school. However, the mother decided to move to live with other members of her family in a different part of the country so that the child could not travel to the school. The child refused to see his father. The father successfully sought orders in the English court for the same arrangement as had been ordered by the Australian court.  

It was held, granting permission by the mother to appeal and allowing the appeal and remitting the matter to the High Court –

  1. In most cases a residence order should not be fettered with a condition that the parent who has that order be confined to a particular locality.
  2. To pick a school and work everything around the school was 'to put the cart before the horse'. The fact was that the mother had re-located to another part of the country and it was completely unrealistic to expect the child to travel to school from there. 
  3. The contact order made by the first instance judge to reflect the pattern ordered by the Australian court was not workable and the matter should be remitted to the High Court, with both parents accepting that there must be a compromise.

The court in this case accepted that the mother's re-location was sensible in view of her lack of income and alternative accommodation. The question of which school a child should attend could not be allowed to determine the remaining issues between the parents. Choice of school often has to be secondary to other practical matters.

Shared residence
There is no magic in a shared residence order. Disputes as to whether one should be made continue to take up hours of court time because of the emotional significance, despite the very limited legal implication. Mostyn J expressed the view in Re AR (above) that a shared residence order is now the exception rather than the rule. However the author resisted an application recently where there were issues of over control of the mother by the father. A shared residence order is inclined to encourage a parent to feel a right to interfere beyond what is reasonable.   

Wall LJ in Re L (Shared Residence Order) [2009] 1 FLR 1157 reviewed the authorities. He decided that it was wrong in principle to apply different criteria merely because there is a shared residence order.  Although a parent resisting internal relocation faces an uphill task, the court will make an order in effect refusing internal relocation in some cases. Evidence for example that the relocating parent intends to undermine the other parent / child relationship by the move is relevant.  The mother's appeal from a refusal to permit a move from London to Somerset was dismissed.

Steps to take when seeking or resisting a relocation

The usual scenarios
Relocation cases most often arise from one of the following scenarios -
[i] The applicant wishes to return home.
[ii] The applicant wishes to take up life elsewhere with a new partner.
[iii] The applicant wishes to try life in a country with which they have no prior connection, but which they feel will offer a better life or employment opportunities for them and their children.

Instructions whether for applicant or respondent must encompass:-
(a) What are the reasons for relocation?
(b) The motivation of the parent seeking to relocate
(c) Is the plan thought out properly?
(d) Are immigration issues relevant? 
(e) What is the effect on the stepfather and new family of refusal to relocate?  
(f) Are relationships in the new state solid and tested?
(g) Money housing and insurance etc
(h) Schooling; has the parent researched this properly? The minimum is a long conversation with the registrar one might think. Better is an  applicant who has visited several schools and given measured consideration to which would suit the child    
(i) Are there special cultural factors such as religion or a language?
(j)  Evidence of back up  in the event of problems  
(k) Is there a commitment to contact by the relocator? 
(l) The cost of contact.
(m)  How will the cost be funded ? The court will descend to the arena of money  to determine this
(n) Is planned contact feasible in practice?
(o) What journeys can the child cope with?
(p)  What is the impact of refusal on the parent wishing to relocate?
(q) What is the effect on the child of disruption with his significant relationships and life here?
(r) What does the child leave behind in England?
(s) Are mirror orders likely to be effective? Expert evidence on this point can be  useful but is often inconclusive if the other state has a completely different approach to family law .    
(t) What are the wishes and feelings of the child?
(u) Does the child understand?
(v)  Can safeguards be put in place, such as a bond?

Breach of  contact orders
In  a case in which the author appeared in 2005 a mother of a 5 year old boy sought leave to relocate to Australia. The judge granted permission. The mother failed to honour the contact obligations imposed before departure. She showed herself hostile to contact. The father, aged 57, applied for a residence order in Australia and succeeded on the ground that the mother was guilty of parental alienation. Care was transferred to the father. The mother was to have contact for most of the holidays. She has had a nervous breakdown and is not seeing the child. This illustrates the draconian view in some states.   Clients should understand that breach of contact arrangement can be very serious.

Brussels II Revised cases
In cases to which Brussels II Revised applies, Article 9 provides that after the lawful removal of a child to another member state, the member 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. Article 8 confers jurisdiction on the member state where the child is habitually resident, and it remains controversial as to the extent to which Article 9 nor Article 41 will prevent the member state where a child has become habitually resident from effectively modifying the original contact order to a high degree. Meanwhile the practical enforceability of BIIR EU contact orders is fraught with difficulty, delay and expense. An attempt to simplify intra EU arrangements has generated legal issues of labyrinthine complexity.   

Re D [2008] 1 FLR 516 demonstrated the difficulties inherent in the new regime. In England there was no proper system of registration in existence and the route for appeal was not set forth clearly in the Family Proceedings Rules. Black J drew attention to the lacuna.

Re S (A Child) [2009] EWCA Civ 993 is a woeful tale of an attempt to enforce an Anglo-Italian contact order.   It is therefore important  in cases  involving intended overseas contact to know whether contact orders will be enforced or not.  Seek leave to adduce expert evidence at an early stage if you are uncertain. Even a letter from a foreign lawyer falling short of expert evidence will be good enough in many cases.

The crystal ball
With the new research, the Washington Declaration and cases such as Re AR in their wake, the outlook for resisting parents is improving. Feasibility of contact is at the heart of the debate. We remain however distant from international consensus.