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Family and divorce

How do the family courts approach international child cases?

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As international relationships are becoming more common, so too are disputes over where a child shall live when parents separate.

The recent case of AB v CD [2019] EWHC 3543 (Fam) highlights this. The case involved a British father and a Taiwanese mother, who lived together with their five-year-old daughter in Belgium. In August 2019, the mother took their daughter on holiday to Taiwan. While they were there, the parents had a row over their daughter’s haircut and the mother refused to return to Belgium. She instead flew back with their daughter to the UK.

In September 2019, the father commenced an application under the Hague Convention for his daughter’s return to Belgium. The court granted his application and now the daughter’s situation and matters of welfare can be formalised and determined in Belgium.

Generally, international relocation cases arise when one party wants to return to their original home, or it suits a career move, or one party has a new partner living abroad, or when a new country offers a better lifestyle. Both parents with parental responsibility must agree where the child will live, otherwise they may have to rely on court intervention. Then, inevitably, the decisions are binary; one party is always going to be disappointed with the decision.

For many years, the leading case on relocation was Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052. Payne placed great weight on the distress of the relocating parent remaining in a country they did not want to be in and the associated impact this would have on their ability to care for the child. Payne has been built upon over the years and was
reviewed comprehensively in Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882, [2017] 1 FLR 979.

Whilst the Payne principles are still factors to be considered, the court must now apply a much more holistic exercise in deciding what is in the child’s best interest. Ultimately, the key consideration will always be the welfare of the child. Every case will be fact specific, the court will look at the whole picture and carefully balance the pros and cons of both
outcomes.

The court will also consider the motivation of both parents and if an application is at all motivated by a desire to limit a parent-child relationship, it is unlikely to succeed. The relocating parent will need to present a careful plan, demonstrating that the proposed move is reasonable and well thought-out. The following is a non-exhaustive list of considerations for a relocating parent (and indeed a left-behind parent in reverse) who finds themselves in this kind of dispute:

Housing. Is there a difference in the quality of available housing?

Ties. What ties does the child have to the new country and what ties would be severed or strained by the move? Where are their family and friends?

Healthcare. Does one country have signicantly better or more affordable healthcare?

Schooling. What is the difference in terms of schooling? Is the state-funded schooling better? Would the child be going into a similar level of education for their age?

Language. Are there any language barriers?

Relocating parents’ employment prospects. What are the benefits to the child in the relocating parent taking a new job? Is their nancial situation going to be much improved? Is there more exibility in childcare?

Political situation. Are there are any political considerations?

The left-behind parent. What is the plan for direct and indirect contact with the left-behind parent? Where will they stay when they visit, how will they get there and is it affordable? Alternatively, could they or would they relocate too?

Transport links. Will the child be exhausted travelling between the two parents?

Child’s view. What are the wishes and feelings of the child? (Albeit the weight given to this will vary depending on age and understanding.)

Overall, the key tip for a parent wishing to relocate is to start planning early and gather as much evidence in support as possible. The plan must be practical, realistic and above all, considerate of the feelings of the left-behind parent. The emphasis should be on facilitating early discussions between parents, gaining wise advice and perhaps seeking
resolution through mediation first.

This article was originally published in Eprivateclient on 17 January: https://www.paminsight.com/epc/login?message=1177

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