Back to school…but is it time for a change?
For some, particularly those whose families are based overseas, this difficult time has severely impacted upon their ability to access their support network, and has as a result caused them to consider relocating to be closer to them. Others wish to take advantage of the more flexible working arrangements that are hoped to remain in place to allow them to move to their dream destination.
For any of these individuals who have children with a former partner who would not be accompanying them on the move, they face the hurdle of either obtaining that partner’s consent to the move, or convincing a family court judge to overrule their coparent’s objections.
When applications to relocate overseas reach the court, a judge will need to decide whether to permit the move on the basis of the child’s welfare as its paramount consideration, and is required in particular to have regard to:
a) the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
(b) the child’s physical, emotional and educational needs;
(c) the likely effect on the child of any change in their circumstances;
(d) the child’s age, sex, background and any characteristics of theirs which the court considers relevant;
(e) any harm which the child has suffered or is at risk of suffering;
(f) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs; and
(g) the range of powers available to the court.
The judge will be guided in considering the above factors by input either from Cafcass (the Children and Family Court Advisory and Support Service) or an independent social worker. The independent social worker or Cafcass officer will meet with both parents individually, as well as any other relevant individuals such as stepparents, and will also usually meet with the child to discuss matters in a sensitive and age-appropriate way.
In this context, and particularly in a mid- and post-pandemic world, the following considerations will be significant:
Pre-Covid, applicants could easily argue that the world was smaller than ever, with affordable direct flights available to more destinations than ever. Judges could, in appropriate cases, be convinced that schedules allowing for children relocating to long haul destinations such as Australia, West Coast USA, South Africa and Singapore to see the parent left behind in person every six weeks or so were eminently achievable and generally affordable.
The past year has shown on what fragile ground such arrangements were founded, with arrangements now being dependent on both countries’ entry and quarantine requirements as well as general lockdown rules, all of which have seen regular and often last minute changes in most jurisdictions. Plans have been forced into disarray, and some parents have been unable to see their children in person for unacceptably long periods.
It remains to be seen whether, in future, judges will see the pandemic as an unprecedented, once-in-a-lifetime issue, or whether it will give them pause for thought in addressing the past assumption that regular international travel was reliable and achievable.
While judicial views on this are as yet unclear, parents seeking permission to relocate to be closer to their families will need to tread carefully in detailing the emotional impact that being separated from their families during Covid-19 lockdowns has had on them, given that the judge may well be contemplating the child facing similar difficulties should travel restrictions be re-instituted for any reason following such a move.
Indirect means of contacting the left behind parent have now become all the more important for children based overseas, and judges will often place significant weight on the extent to which this can be achieved, particularly where the move will represent a significant reduction in the level of in-person contact between the child and the parent left behind.
A decision as to the suitability of such arrangements will be influenced in particular by the child’s age and ability to engage with contact via FaceTime, Skype, Zoom or similar, as well as the extent to which the relocating parent is able to sustain this.
The younger the child, the more likely it is that the Cafcass officer or independent social worker will advise the judge that they will not be able to sustain meaningful contact via such methods , given their limited concentration spans and inability to engage fully with video platforms.
Likewise, with younger children, if it appears that tensions between the parents are such that they will not be able to cooperate to arrange such contact, and the resident parent cannot be relied upon to support it and encourage the child to engage, this will be of serious concern to the court in considering the relocation application.
It is also generally considered that older children, who have until now had regular and meaningful contact with the other parent, and so have a stable and strong connection with them, will be better able to adjust to a schedule of less regular in-person contact, supplemented by indirect contact. This is particularly so when the child is of an age where they are sufficiently proficient in using electronic devices that they will be able to reach out to the other parent themselves, without the need to seek assistance from the resident parent.
In certain jurisdictions, there may also be additional practical issues in facilitating such indirect contact, such as where the destination does not have sufficiently reliable internet access to facilitate video communications. In this day and age, a judge is very unlikely to be convinced that other means of communication such as phone, email or letters are a sufficient alternative to seeing the other parent, virtually or otherwise.
The intended destination is of fundamental importance to the judge’s decision. They will consider any existing connections the family has to that country (the stronger these are, the better the chances of success) and, where the child has connections to more than one culture, how both could be preserved either follow a move, or following the rejection of a relocation application.
The parent opposing the application will wish to emphasise the means by which the child’s links to their heritage can be supported at home, while the parent seeking to relocate will need to focus on the importance of immersing the child in the culture of their destination as well as their ability to preserve their connection to and understanding of their other heritage.
All parents seeking to relocate, but particularly those with no existing connection to the country in question, will need to work hard to demonstrate that they have carefully researched and planned the move and how the child will flourish in their new home. The more detailed and well-thought out the plans presented, the greater the chances of the parent being able to satisfy the Cafcass officer or independent social work that the move would work for, and indeed benefit, the child.
Given current indications that Covid-19 vaccination programmes will take far longer to complete in some countries than other (particularly as a result of the uneven distribution of vaccine doses), this may in due course prove an important consideration regarding the intended destination. Judges will not only need to consider the potential risk to the child of being exposed to Covid-19 themselves, or having the resident parent’s ability to care for them being compromised by the virus, but also the wider effects that, for example, school closures or limited social contact will have on them.
Although such considerations are presently just as valid in England and Wales as they are overseas, it is likely that, as the English and Welsh vaccination programme progresses and restrictions are removed, parents opposing applications to countries who have not reached this stage may in due course find fertile ground for argument.
As is clear from the above, Covid-19 considerations have added a further layer of complication to an already emotive and binary issue, which will inevitably either result in a fundamental change to the child’s relationship with the parent left behind, if an application is granted, or disappointment and sometimes even despair for the parent making the application if it is refused. With that in mind, it is more important than ever to seek legal advice on such matters as soon as they arise.
If you have any questions about the issues raised in this or other blogs in this series, please contact a member of our family and divorce team. We have a longstanding reputation in advising parents who wish to take their child abroad or elsewhere in the UK to live and relocate after separation or divorce - and equally in advising parents who want to prevent such a move.
See also our “Moving Abroad with Children - Frequently Asked Questions” for further information and you can follow our blog series on relocation for separation parents here.
Cate Maguire is an associate in the Family Team, advising clients on matters including divorce and civil partnership dissolution, associated financial issues and issues surrounding children. She has particular expertise in jurisdictional issues and complex financial matters.
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