Part One
Austin Chessell looks 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.
With the growth in cheap flights and increasing employment prospects arising from globalisation it is becoming more common for separated parents to consider permanently relocating abroad and wanting to take their children with them. Consent needs to be given by the non-relocating parent for the relocation to take place which is rarely easy to obtain as it inevitably creates further tension between the parents and re-opens the pain experienced during the initial post separation childcare discussions. The non-relocating parent often fears losing all contact with the child if relocation happens. Where relocation is contested, it is worth considering what the main legal principles are which determine whether the relocation should take place and whether consent is best obtained through the courts or by mediation. In my experience, mediation is often more successful where parents have a good understanding of these legal principles and can then use them to shape their own relocation agreements.
The leading cases which parents need to be aware of are:
Payne v Payne [2001] EWCA Civ 166
This was an unsuccessful appeal by a father against an order allowing the mother (who significantly was the main carer) to remove the child to New Zealand. The guidance in this case is known as the ‘Payne Test.’
The test means that the court must consider if the proposed relocation:
- derives from a genuine desire to start a new life abroad (i.e. not being selfishly motivated to cut one parent out of the child’s life)
- has been well thought out and researched having regard to the practicalities of the situation.
If the application to relocate is deemed to be genuine and realistic, the court must then weigh up:
- if the opposing parent’s reasons are based on a genuine concern for the future child’s welfare, or if there is an ulterior motive.
- what effect the relocation would have on the relationship between the parent who is not relocating and the child. The court will also need to consider the extent to which this would be balanced by any new relationships that the child would form in the relocation country.
- what the impact would be on the parent who proposed the move if the application was refused.
While taking the guidance into account, the court’s paramount concern will always be the child’s welfare.
However, in Re K [2011] EWCA Civ 793 the Court of Appeal ruled that the only point of law from the Payne case was that the child’s best interests must be the paramount consideration of the court. In this case, (unlike Payne) care was shared between the parents. The court decided that in shared care cases the application should be decided on the facts of each case, the welfare of the child and the statutory considerations which are set out in s.1(3) of the Children Act 1989, often referred to as the ‘Welfare Checklist’.
In Re K a father brought a successful appeal against an order which gave the mother permission to leave and take the children to Canada. The court confirmed that in the circumstances of this case the approach followed in Payne v Payne was not appropriate because care was shared between the parents which require a deeper analysis of the impact of the relocation on the child. As a result of this case a lot of parents may now find it harder to persuade the court that the relocation should take place where there is a shared care arrangement in place.
Payne is only applicable where the relocating parent is the main carer. The approach in Payne should not be followed where the parents share the caring of the children in more or less equal proportions. Consideration must be given to all of the facts.
Part two to follow shortly: Austin Chessell is a Family Mediator at FAMIA (www.famia.co.uk) and a Collaborative Family Solicitor at Shortland