International child relocation: a new approach

Last summer, the Court of Appeal of England and Wales, in MK v CK [2011], signalled a dramatic shift in the approach to international child relocation cases. In cases with care significantly shared between two parents, the courts will now often refuse permission to relocate a child abroad.

Until that decision, controversial case law (Payne v Payne [2001]) told judges to remember that a refusal of permission was likely to have a detrimental effect on the psychological health of the departing mother and, as a consequence, on the child's welfare also. In MK v CK, the parents shared the childcare arrangements, and thus the potential loss of contact on the staying behind parent carried more weight.

The court’s new 2011 guidance says judges must remember the welfare of the child as the paramount consideration, and therefore, the effect of the move on the child. Maintaining contact with both parents will therefore now be a more important factor in many cases.

Since that decision in July last year, the courts have refused more applications to relocate children.

The following themes are emerging as a result:

• More fathers are seeking shared care regimes rather than accepting contact on alternate weekends only, as has been a pattern previously. The courts will scrutinise the motives for such arrangements.
• The court timetable can have an impact. Slow timetables can favour fathers who want to show shared care has become the norm. This can lead to tactics over “slow” court appointed welfare experts, or “fast” private experts.
• Historically, mothers wanting to relocate have been encouraged to offer frequent contact prior to the final hearing to show they promote the child's relationship with the other parent. However, that may now harm their relocation chances.
• Mothers expecting better financial circumstances abroad have usually used this as an argument to move. Fathers can increase their chances of refusal of relocation if they provide proper financial support to the mother.

With the law developing in this area we recommend clients should, now more than ever, seek early advice.

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