When couples separate, a decision by one party to relocate abroad can have damaging consequences, writes Sheila Byth
One major social consequence of an increasingly free labour market has been the number of family incidents – some of them extremely distressing – that arise when divorced spouses or separated partners decide to build a new life for themselves and their children hundreds or, even worse, thousands of miles from home.
Whether it involves a move to another part of the UK, the continent or even further afield, such a decision is clearly going to substantially change the nature of contact, which will impact enormously on both the relocating and the remaining parent and their offspring.
When faced with such a situation in a professional capacity, my first question (to the parent intent on relocation) tends to be: is the move really necessary?
I do so because, before making a final decision, this person really does need to balance the advantages of a move with the effect on his or her children on several counts – i.e. survival of the relationship with the parent who is remaining, whether their schooling will be adversely affected, quality of life within the new environment, and the frequency of visits back to ‘home territory’. In other words, a parent intending to relocate needs to realise it’s not just about him or her.
If, having weighed up these facts, the individual still intends to make the move, he or she will be advised to “take the other party with them”. Doing this means admitting the move will have disadvantages as well as advantages and being prepared to address them. It also requires a co-operative attitude as a means of ensuring reasonable contact is maintained with the parent left behind as well as his or her extended family.
This is often easier said than done as bitterness can quickly seep into such disputes.
Therefore, should both parties be unable to come to an acceptable agreement – and I cannot emphasise enough the necessity of trying to do so – the next obvious move would be for the relocating parent to seek permission from the court to grant his or her wishes by way of a Specific Issue Order.
In granting or refusing such an order, the court will make a decision based on whether the proposed move is in the best interest of the children.
In deciding what constitutes ‘best interests’, the courts will weigh up whether the proposed move will lead to an improvement in their well-being which could justify such a potential major change to the nature of their relationship with the parent who is being ‘left behind’. The court will seek directly the view of the children, although this depends on their age.
Most disputes of this kind are really tough on both parents and children, and someone is bound to end up bitterly disappointed because the court is generally a ‘yes’ or ‘no’ in favour of one side or the other. Statistically too, the courts have tended to refuse a Specific Issue Order. However, each case turns on its own facts so it is very difficult to predict likely outcomes but only a third or so of cases will usually result in a relocation order being granted.
When a mutual agreement between both parties proves impossible, this Order is essential if children are to be lawfully relocated; removal without consent means the perpetrator is committing the criminal offence of child abduction and potentially gives grounds to invoke the Hague Convention on international child abduction which triggers mechanism for return of the child.
This, of courses, will have considerable implications for the law-breaking parent.
Relocation disputes are often long and drawn-out but, ironically, this can sometimes work to the advantage of both parties, in that it gives time for the parent who is remaining to come to terms with their children living in a faraway location. On occasions, the remaining parent will make the selfless decision to consent to the move but these circumstances are few and far between and are usually based on a good deal of trust existing between both parties from the outset.
More likely, trust – where it exists – soon evaporates with the danger of the dispute leading to a costly and stressful courtroom battle with both parents fighting each other through their children, often having set aside whether the proposed relocation will be good for the youngsters or not.
Little wonder, therefore, that brokering a mutual agreement brings such personal and professional satisfaction to those lawyers determined to advance collaboration and mediation in family legal matters.
• Sheila Byth is a senior solicitor with Blackadders, www.blackadders.co.uk