Austin Chessell continues his article looking at some of the main principles of the law on International Relocation and discusses how parents can use them in family mediation as an alternative to going to court to help them shape their own agreement on whether relocation with children should take place
Key findings from relocation case law are:
– The welfare of the child is the paramount consideration and all other criteria should feed into this.
– In deciding which solution will best meet the child’s welfare, consideration should be given to the guidance set out in the Welfare Checklist where care is shared and to the Payne Test where there is a main carer for the child.
– Leave to remove applications must be made in a way which does not obstruct contact nor weaken the child’s relationship with the non-relocating parent.
– The relocating parent must have planned the move having regard to the practicalities e.g. it is better if the move is at the end of the school year rather than in the middle of the school term, having good access to healthcare, immigration laws not being a major obstacle and the non-relocating parent still being able to still have good contact with the child.
– The court will have regard to the impact which a refusal of the application will have on the relocating parent where s/he is the primary carer e.g. the primary carer feeling isolated and lonely if the move is not granted.
– It is important in every case to consider what the effect of the reduction in contact time with the parent who is not relocating will be on the child.
– If the child is an older child then its wishes, views and feelings will carry more weight in the relocation decision.
As a mediator my role is different to when I am acting as a solicitor in that in mediation I can only share the above legal information with mediation clients but cannot advise them. Parents can then use that information and seek legal advice from solicitors where appropriate to make joint decisions on the relocation through mediation.
In August 2013, Dr Rob George from Oxford University found in a report called Relocation Disputes in England and Wales: First Findings from the 2012 Study that one third of all requests for relocation are not permitted by the family courts. In the current economic climate parents are questioning why they should spend potentially tens of thousands of pounds on a relocation case involving several hearings when the case can be mediated in a quicker and more cost effective way (especially where a relocation allowance has not been provided by an employer) and, in light of Dr George’s report, may stand a higher chance of success.
Every mediation case is unique based on the client’s circumstances, but the following are issues that commonly arise in international relocation cases which parents (and mediators) need to consider:
- Childcare time – when should the contact take place and where?
- Who is booking and paying for the international travel?
- If the child is young how will they travel? Will relatives need to be involved to ensure travel can take place.
- Will contact between the child and the non-relocating parent take place during term time and in what form. e.g. face to face, email, phone or Skype?
- Making decisions for future education, after school activities and medical treatments – it may be that the parent who is not relocating wants to visit the school abroad or neighbourhood before any schooling decisions are made.
- Being provided with copies of future medical records and school reports.
- If an order is prepared after mediation, will this need to be mirrored abroad? The clients will need to liaise with their legal advisors here and abroad to get this confirmed.
- If the order is not followed, should the relocating parent provide a legal costs allowance for the parent who is not relocating? There may not be funds for this but in some cases there may be.
- Will the parent not relocating have more contact prior to the move?
- Will the parent agree for the relocation to be for a defined time before returning?
- Will the children return in the future for their university education? If the children are old enough and the parents agree, the mediator can meet with the children to find out their wishes and feelings on this and then pass agreed information back to the parents before a decision is made.
- How will extended family members remain involved with the children?
- Will the relocation take place in a way that is not disruptive to the child?
I have worked on relocation cases through the courts as a solicitor and through mediation as a family mediator. In my experience parents communicate better in mediation than they do in litigation as the focus is on collective interests not fixed positions. If a parent is unhappy with a court decision, litigation will most likely continue with appeals being made, but, in mediation, parents tend to respect what was agreed and rarely look to amend a Memorandum of Understanding.
With Mediation Information Assessment Meetings (MIAMs) likely to become compulsory for all applicants if the Children and Families Bill 2012-2013 is enacted, it would not be surprising if more international relocation cases are resolved through mediation rather than through the court system.
Austin Chessell is a Family Mediator at FAMIA (www.famia.co.uk) and a Collaborative Family Solicitor at Shortlands.