UK Law and Practice Contributed by: Emma Post and Nicki Beale, NE Family Law
• where relevant to the determination of the out- come, the reasons for seeking or opposing the relocation; • any history of family violence or abuse, whether physical or psychological; • the history of the family, and particularly the con - tinuity and quality of past and current care and contact arrangements; • pre‐existing custody and access determinations; • the impact of granting or refusal on the child, in the context of their extended family, education and social life, and on the parties; • the nature of the inter‐parental relationship, and the commitment of the applicant to supporting and facilitating the relationship between the child and the respondent after the relocation; • whether the parties’ proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden on the child; • the enforceability of contact provisions ordered as a condition of relocation in the state of destination; • issues of mobility for family members; and • any other circumstances deemed to be relevant by the judge. While these factors may apply to domestic relocation, they are primarily directed at international relocation and thus generally involve considerations of interna - tional family law. Key Cases The leading authorities on determining international relocation cases are: • K v K (children) (removal from jurisdiction) (2011) EWCA Civ 793, (2011) All ER (D) 67 (Jul); • Re F (a child) (permission to relocate) (2012) EWCA Civ 1364, (2013) 1 FLR 645; and • Re F (a child) (international relocation: welfare analysis) (2015) EWCA Civ 882, (2015) All ER (D) 90 (Aug). 2.3.2 Wishes and Feelings of the Child Please see 2.3.1 Factors Determining an Application for Relocation . In accordance with Section (1)(3)(a) of the Children Act 1989, the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding) will be a relevant factor
for the court in England and Wales to consider when determining an application for international relocation. The wishes and feelings of the child are not neces - sarily determinative; this will depend on their age and maturity. 2.3.3 Age/Maturity of the Child If an application involves an older child, it is likely to be inappropriate and even futile to make orders that conflict with the wishes of the older child (see Re C (older children: relocation) [2015] EWCA Civ 1298 [2]); however, in each case it is a matter of judgement for the court what weight is placed on their wishes, which do not carry precedence over other welfare factors (see Re N-A (children) [2017] EWCA Civ 230). 2.3.4 Importance of Keeping Children Together In England and Wales, there is no presumption that children/siblings will be kept together. In so far as the court considers this factor, it would be relevant under Section 1 (3)(b) of the Children Act 1989, as would their emotional needs under Section 1 (3)(c); the impact on any change of circumstances would also be a factor to be considered as part of the overall welfare analysis. 2.3.5 Loss of Contact The implementation of Section 1 (2A) of the Children Act 1989 (the presumption that the involvement of both parents in a child’s life will further the child’s welfare) under Section 11 of the Children and Fami - lies Act 2014 brings heightened scrutiny of proposals that interfere with the relationship between child and parent. The court must balance the competing rights of both parents and the child under Article 8 of the European Convention on Human Rights and Funda - mental Freedoms, and furthermore the rights of the child to maintain a direct relationship and contact with both parents, unless contrary to their welfare (United Nations Convention on Rights of the Child). This is an important factor that impacts a child’s emo - tional welfare and any change in circumstances, and therefore falls to consideration under Section (1)(3)(b) and (c) of the Children Act 1989.
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