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International Relocation: The Reality Check

What actually happens after a child is relocated? Clare Renton, of 29 Bedford Row, looks at new research suggesting some received wisdom can be challenged.

image of clare rention barrister 29 Bedford Row

Clare Renton, 29 Bedford Row

The Court in England and Wales predicts how grant or refusal of leave permanently to relocate a child will work out in practice.

As Thorpe LJ has stressed, each case is fact sensitive. As Head of International Family Justice he is of the view that relocation applications should be considered at High Court level. Given the number of applications annually that is not feasible. There is usually no right and wrong answer in these cases. Instead there is a dilemma.

In Payne v Payne [2001] EWCA Civ 166; [2001] 1 FLR 1052. Thorpe LJ and Dame Elizabeth Butler-Sloss P stated  that there is no presumption in favour of relocation. The Guidance, at para 26(b) in the Judgment of Thorpe LJ, was -

“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.”

Two new pieces of research suggest the outcome predicted by the Court in litigation is often not what occurs in fact.

The New Research   
A paper presented by 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. A paper presented by Dr Marilyn Freeman at 29 Bedford Row on the 7th July summarised research carried out by the Reunite Research Unit [1] 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 2005 radical overhaul of Australian family law, 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 upon the mother of refusal of leave.

Some of the key findings of both research papers are summarised below.

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.

Is Contact So Important?
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. 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 the existence of 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: “Disneyland contact“ is not what a relationship is really about.
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 Ireland or France 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 co-operates. 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 lipservice to a desire to support future 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. 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:

“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.   

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.

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.

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 asserts 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”.

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. There is no magic in a shared residence order. Wall LJ in Re L [2009] 1 FLR 1157 reviewed the authorities. 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 Crystal Ball 
Practitioners and clients alike will find this work a disturbing reality check. The advice of practitioners acting for a father has often been so pessimistic that fathers have decided not to squander their emotional and financial resources on resisting. As a result of this latest research that advice may, in some cases, be different now.

Clare Renton
29  Bedford Row Chambers

Clare is a patron of reunite

[1] The full Reunite Research is available on the reunite website here.