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Researching Relocation Disputes in First Instance Courts

Dr Rob George, Fellow in Law at the University of Oxford and Associate Tenant at Harcourt Chambers, discusses relocation disputes and his on-going research into how these cases are dealt with in the first instance courts of England and Wales.

Dr Rob George, British Academy Postdoctoral Fellow in Law, University of Oxford, Associate Tenant, Harcourt Chambers
















Dr Rob George
, British Academy Postdoctoral Fellow in Law, University of Oxford, and Associate Tenant at Harcourt Chambers

Relocation disputes are Children Act cases about proposals to change the geographic place of residence of a child. Typically, they are cases between separated parents where one of them proposes to move overseas with the child, though there are plenty of variations on the facts – not all cases are international, and not all cases are disputes between the two parents of the child, and so on.

Practitioners in England and Wales will be well aware that there is a significant debate about the approach that our courts take to relocation disputes. Indeed, the debate can be seen in any of the family law journals, including numerous pieces in Family Law Week1, in Family Law2, and in Child and Family Law Quarterly3, as well as in court judgments themselves4. Most of that debate is about whether there needs to be a change in approach from that set out by the Court of Appeal in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052 and, more recently, in K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793, [2012] 1 FLR forthcoming5.

The need for research
One of the difficulties that we face in conducting this debate in England and Wales is that we know very little about relocation disputes. We know a lot about what the Court of Appeal says in cases which it hears – usually two or three per year – and we know a little about the few High Court decisions which are made public6, but there is reason to think that these cases are atypical and will prove a misleading guide to the 'everyday' reality of relocation cases. Why is that so?

Taking the appeal cases first, it is well known that leave is required to take a case to the Court of Appeal. Trial judges rarely grant leave to appeal, so most cases are filtered by a Lord of Lady Justice of Appeal. There is a view amongst many that relocation cases are easy to get before the Court of Appeal, particularly if the trial judge refused leave to relocate7. However, cases are not granted leave unless there is a reasonable prospect of success. I am mid-way through a study of Permission to Appeal applications in relocation cases, aided by Thorpe LJ. As I discuss in a forthcoming Family Law article,8 there are plenty of applications for Permission to Appeal that are refused, regardless of the outcome at first instance. There were five applications made to the Court of Appeal in relocation cases between January and March 2012, all refused permission to appeal. So the handful of cases where the appeal is actually heard are heavily filtered, and are likely to involve especially unusual facts or an error of some kind at first instance.

What about the High Court cases that are reported? There are a number of biases here. One is that the judge hearing the case must give leave for it to be reported, and some judges are more willing than others to do that. Then we have to ask why judges give leave to report. Usually, it is because they think that either their judgment or, more often, the facts of the case make it of broad relevance to practitioners and the development of the law itself. So cases which are 'typical' and where the judge considers that he or she simply applied the law in a standard way are unlikely to reach the public domain often.

Because of these issues, there are problems with understanding the true state of relocation law in practice. The best that can be done at the moment is to make assumptions based on the few reported cases that there are (which, as I say, as likely to be atypical) coupled with our individual or anecdotal experiences. My doctoral research involved interviewing 22 English and Welsh practitioners (trial judges, barristers, solicitors and welfare officers) about relocation law,9 but even that can only really give an indication of the reality on the ground.

The 2012 research project
To attempt to gather more information about these issues, the British Academy is funding a major research project into relocation disputes in England and Wales. The main strand of that research is to gather a full year's worth of judgments and orders in relocation cases directly from trial judges. The President of the Family Division, Sir Nicholas Wall P, has authorised this research under FPR rule 10.73(c), and the Head of International Family Justice, Thorpe LJ, has been offering active support. So how does the project work?

All trial judges in the family courts of England and Wales have been asked to submit a copy of any order or judgment which they make in a relocation case (either international or domestic) between 1 January and 31 December 2012 to me via Thorpe LJ's Legal Secretary, Victoria Miller, at the Royal Courts of Justice (Victoria.Miller@judiciary.gsi.gov.uk). Materials may be sent without any redaction, since the President has authorised me to see non-anonymised documents so long as nothing is published which identifies anyone involved (and procedures are in place to guarantee that).

Judges received letters from Lord Justice Thorpe in January 2012 asking for their help with this project, but any further assistance in reminding judges about the project would be gratefully received. The more materials are submitted, the more valuable the research will be, and the more questions we will be able to answer after it is complete.

The aim of this research is to find out more about relocation cases which do not reach the Court of Appeal and so to broaden our understanding of the everyday realities of relocation disputes. There is no 'review' of any individual case, and no one involved in any case – whether judges, lawyers, parties, children, experts or witnesses – will be identified at any stage. Moreover, no one at the Royal Courts of Justice is looking at the materials submitted – that process is simply a conduit to ensure the secure transfer of documents.

Anyone interested in further details can contact Dr George by email (robert.george@law.ox.ac.uk), telephone (01865 276635), or by post (University College, Oxford, OX1 4BH). Judgments or orders made by judges between 1 January and 31 December 2012 should be sent by the judges themselves to Victoria Miller, preferably by email to Victoria.Miller@judiciary.gsi.gov.uk. It does not matter when judgments are sent (though sending them as they happen is likely to be easiest), so cases from earlier this year can still be submitted at any time.
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Footnotes:

[1] See, eg, M Robinson,'Relocation: Reform?'; R Gregorian and G Emerson, 'Leave to Remove and the Payne Discipline: Breaking the Impasse'; A Watts, 'The End of Payne?'
[2] See, eg, C Geekie, 'Relocation and Shared Residence: One Route or Two? [2008] Family Law 446; F Judd and R George, 'International Relocation: Do We Stand Alone?' [2010] Family Law 63; R George, 'Relocation Research: Early Ideas from Ten County Court Cases' [2012] Family Law, forthcoming (June). 
[3] See, eg, R George, 'Practitioners' Views on Children's Welfare in Relocation Disputes: Comparing Approaches in England and New Zealand' [2011] Child and Family Law Quarterly 178; R George, 'Reviewing Relocation? Re W (Relocation: Removal Outside Jurisdiction) [2011] EWCA Civ 345 and K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793' [2012] Child and Family Law Quarterly 108.
[4] See, eg, Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam), [2010] 2 FLR 1577; Re H (Leave to Remove) [2010] EWCA Civ 915, [2010] 2 FLR 1875; Re W (Relocation: Removal Outside Jurisdiction) [2011] EWCA Civ 345, [2011] 2 FLR 409; K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793, [2012] 1 FLR forthcoming.
[5] For commentary on K v K, see R George, 'Reviewing Relocation? Re W (Relocation: Removal Outside Jurisdiction) [2011] EWCA Civ 345 and K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793' [2012] Child and Family Law Quarterly 108.
[6] See, most recently, Re Z (A Child) [2012] EWHC 139 (Fam); S v Z [2012] EWHC 846 (Fam).
[7] See, eg, M Hayes, 'Relocation Cases: Is the Court of Appeal Applying the Correct Principles?' [2006] Child and Family Law Quarterly 351. Many practitioners that I interviewed for my DPhil in 2008-09 made comments along these lines: see R George, 'Reassessing Relocation: A Comparative Analysis of Legal Approaches to Disputes Over Family Migration After Parental Separation in England and New Zealand' (University of Oxford, 2010).
[8] R George, 'Relocation Research: Early Ideas from Ten County Court Cases' [2012] Family Law, forthcoming (June).
[9] R George, 'Reassessing Relocation: A Comparative Analysis of Legal Approaches to Disputes Over Family Migration After Parental Separation in England and New Zealand' (University of Oxford, 2010); some of that work is published in R George, 'Practitioners' Views on Children's Welfare in Relocation Disputes: Comparing Approaches in England and New Zealand' [2011] Child and Family Law Quarterly 178.