INTRODUCTION Contributed by: Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers
Given that the process can be slow and sometimes cumbersome in some countries, timing is very impor - tant so as to avoid unnecessary delays, and, for the parent seeking to relocate, any opportunity that arises to negotiate and to try to reach an agreement with the opposing parent, either before or during the course of proceedings, should be taken. Conversely, delay often suits the parent opposing the relocation. When trying to reach an agreement, the parent seeking to relocate should, where viable, invite the other parent to also relocate and offer generous contact proposals. Although the key considerations typically remain the same, different jurisdictions vary in how they balance the right of the primary carer (often the mother) to go to a place where she would prefer to be against the change to the child’s relationship with their father. In trying to achieve the right balance between the two, the law may be a blunt instrument – given that the fac - tual narrative of each relocation case is, by definition, unique and distinctly human. It can also be a costly exercise involving multiple hearings within lengthy proceedings. Choosing to use the courts to deal with issues relat - ing to children can be a bit of a sledgehammer and an expensive one, too – requiring people to spend their hard-earned savings on trying to ensure that they will see their child again or potentially prevent the child from moving to another country. Whether individuals can afford good legal counsel will depend on their financial situation or whether legal aid is available in their country. In some countries, relocations can be resolved out of court through avenues such as media - tion or arbitration. The key consideration in such cases is often the wel - fare of the child. The weight placed on such issues and evaluating what is in the child’s best interests will depend on the jurisdiction. In England and Wales, where the same welfare approach applies to internal and international relocations, the courts must weigh up various factors under a welfare checklist, such as: • the child’s wishes and feelings; • the child’s sex and background; • the child’s physical, emotional and educational needs; and
• the likely effect on the child of a change in circum - stances. This list is non-exhaustive. Careful preparation of writ - ten evidence and credible contact plans facilitating frequent contact between the opposing parent and child are key aspects of any relocation application. If the parent seeking to relocate can afford to pay for at least some return flights for themselves and the child, so the child can spend time with other parent, they should offer to do so. The court must be convinced that the relocation is one that the applicant parent genuinely believes to be in the best interests of the child, rather than motivated by a desire of one parent to “get away” from the other and to marginalise the other’s role in the child’s life. The age and maturity of the child or children will often be a key consideration in jurisdictions that take account of their wishes and feelings. The impact on the child is likely to increase with age – for example, a 15-year-old is typically more able than a five-year- old to articulate and express their desires about their relationships with their parents. However, the amount of weight given to the child’s views can vary in differ - ent jurisdictions, and one aspect with which the courts have to regularly grapple is whether the expressed wishes and feelings of a child represent their own independent voice or whether they are, for whatever reason, stating what they think one parent wants to hear. Where different children express strongly differ - ent wishes, this might result in families/siblings being split up. The courts will also consider other factors such as the potential harm that could be caused to the primary carer of a child who is refused permission to relocate. It is widely accepted that it is important for a child to have a relationship with their non-resident parent; however, it is similarly important for the child to have a principal carer who is psychologically stable and emotionally well. The court will likely be concerned for the primary carer if they assert that they are lonely and isolated with no support network in the country where the parties are living, although this is just one aspect amongst many others that the court will need to consider, including the sense of loss and psycho - logical impact the opposing parent may suffer if the
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