Relocation, Relocation, Relocation

There are more and more applications coming before the courts in regards to parents wishing to re- locate to another country with the children. 

The leading case law in relocation has been Payne v Payne [2001] EWCA Civ 166. The main points which came out of this case were:

• The welfare of the child is always paramount.
• Section 13(1)(b) of the CA 1989 creates no presumption in favour of the applicant. The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
• The proposals must be scrutinised as the court must be satisfied that there is a genuine motivation for the move and not an intention to end contact between the child and the other parent.
• The effect of a refusal of permission to relocate on the applicant parent and new family of the child is very important.
• The effect on the child of having no contact with the other parent (and in some cases his family) is very important.
• The opportunity for continuing contact between the child and the parent left behind may be very significant.

The outcome of the case has continued to be criticised by legal professionals as they believe that too much weight was given to the  the importance how the parent who was not able to move ability to care for the child if they were forced to remain. 

Further case law has shown a slight shift away from this however, the main concern for the courts is that the child’s welfare is paramount. 

In S v S 2017, the court granted leave for the father to relocate to Switzerland with the parties two sons aged 13 and 15. The mother opposed this application.

The Judge allowed the move and relayed his judgement quoting the welfare checklist. One part of the welfare checklist of which he placed significant weight was the wishes and feelings of the children. The children had made their feelings quite clear that they were in favour of a move to Switzerland. The mother argued that these feelings had been incited by the father. The Judge stated that the views and wishes of the children could not be ignored and that a move to Switzerland was the only liable choice. 

Relocation cases can be very distressing for all parties involved, but it is interesting to note that the children’s wishes and feelings are taken into consideration in these decisions. This recent case confirms again that when a court is deciding on this issue, the children’s welfare remains the paramount concern. 

This is an application made on 3rd April 2017 by Mr S, who I shall call the father, to remove his two sons, D, aged 15 years three months, and A, aged 13 years nine months, to live with him in Switzerland. That application is opposed by the boys' mother, with whom they live. The boys have their own representation in these proceedings. There is also an older child of the family, M, who is now 18 and a half years old. The issue must be decided in accordance with the welfare of the children and I must balance all relevant factors to find which of the available options is the best. I have been fully reminded of the relevant statutory and judicial authorities which need no further specific citation here.......