Transnational parenting and the consequences
Under English law no one is permitted to take a child out of the jurisdiction of England and Wales (which, for the moment at least, includes Scotland) without the permission of all those with parental responsibility, because doing so would be child abduction. Where this permission is not forthcoming the party intending to relocate will need to apply to the court for permission.
In the recent case of S v G the judge commented that “…parties that go into transnational parenting agreements go in with their eyes wide open, fully alert to the consequences of it going wrong.” In reality, however, it is extremely hard to be mindful of, let alone prepare for, the consequences associated with the breakdown of a relationship, without even factoring in the potential that an ex-spouse or partner might decide to emigrate or move back to his or her home country with the children.
Nevertheless, while cases brought before the court are fraught with difficulty for the people involved, the legal position, which has been clarified in recent years, is described as “clear and stable”.
Leave to remove – the legal position
In considering an application for leave to remove (or ‘relocation cases’) the overriding principle which the court must apply is that the welfare of the child is paramount and overbears all other considerations. In determining the child’s welfare the court follows a checklist which is set out in section 1(3) of the Children Act 1989.
The court must not categorise cases according to the concepts of primary or shared care, and there is no legal principle favouring an application made by the primary carer. Each case may be decided on a fact by fact basis, in accordance with the above principles and with assistance from the following guidance given by the Court of Appeal:
- Is the application genuine, in the sense that it is not motivated by some selfish desire to exclude the other parent from the child’s life?
- Is the other parent’s refusal motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
- Is the application realistically founded on practical, well-researched and investigated proposals?
- What would the impact of refusal be on the applicant?
- What would the impact of permission be on the respondent and their future relationship with the child?
- To what extent would that detriment be offset by extension of the child’s relationships in the proposed country?
In practice – a recent case
In applying these principles and guidance, Mostyn J comments (in the case of NJ v OV) that the judge in question will be required to make a factual evaluation and ultimately a value judgment.
This is clearly apparent in S v G, which concerned a 2 year old child with a Russian mother and English father. In the short term, his physical, emotional and educational needs could be broadly met by both parents. His background was that of a “child of a transnational marriage with a strong heritage and cultural identity in each country.” It was emphasised that neither heritage had “presumptive precedence” and that given the child’s age the outcome of the proceedings would “not only determine [his]… upbringing but also shape his identity”. A determining factor was that the mother, variously described as an energetic, resourceful and driven woman, evidenced from her career progression and social network, was able to meet the child’s longer term needs and offer him a wider field of possibilities for his future. The mother secured her permission to remove.
The consequences of a relationship breakdown
It is judicially recognised that the outcome of relocation decisions will often leave one parent bitterly disappointed and that there is rarely scope for finding a comfortable middle ground.
Whether seeking or opposing a relocation order, the attention and care given to the preparation of the legal case will often make all the difference to the outcome.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.