AirplaneNicole Lawton is a member of the Adult & Children Panel and an advanced member of the Family Law Panel, and here she comments on a recent case where a foreign born mother wanted to take her child with her out of the country.

In a recent case (Re D(A Child)) [2015] the father of the child sought a child arrangements order under which D (the child) would live with him and continue to be cared by both parents in England. The mother sought permission to relocate with D to live in Moscow, her native city and D’s birth place with contact with the father occurring in England and in Russia.

The family court upheld the mother’s application and granted permission to the mother to remove D.

This case concerned a relocation of a child who was 2½ years, from England to Russia with his mother. He was a dual British and Russian citizen. The court emphasised that children of international relationships will be expected to have links to more than one country. The judgment focused on the role of each parent in the child’s upbringing, the motive for the move (including whether the motive was to exclude the other parent from the life of the child), the motive for opposing the move, the social and family networks of each parent in England and Russia, their capacity to parent, including employment prospects, and the potential future relations between the parents and the wider family in facilitating cross national contact.

The court observed that the change in a child’s residence can change the nature of the child’s upbringing. The physical distance created when a child moves from one country to another affects the nature and quality of the relationship between the child and the parent whom he or she no longer lives with. The court must focus on the impact of relocation on the child’s welfare and assess the effect of relocation on the child’s relationship with both parents in the long term. Whilst in this case both parents had broadly equal parenting capacity, in the longer term it was felt that to require the mother to remain in England for the next 15 years would leave her with a justifiable send of bitterness that was not in D’s best interests.

There was an earlier case which is referred to in this case S v T [2012]. Re D reinforced the approach taken in S v T. The latter case emphasised that applications to relocate to a home country may require less scrutiny. The motivation of both parents in the application should be closely examined and the impact of an Order for relocation being made or refused on both parents needs to be considered.

Fitzhugh Gates Solicitors Comment

Our successful family department at Fitzhugh Gates has conducted many applications for permission to remove a child from the jurisdiction (permanently and temporarily). We have applied the case law and legislation carefully yet robustly. We have had very positive results in terms of drawing attention to the necessary and fundamental circumstances of the case and achieving very successful outcomes.

By Nicole Lawton - Partner

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