17 June 2013, by Taylor King Family Law Solicitors
International relocation of children is an area of private children law that is becoming more and more common in England and Wales. Removing children from this country can have significant consequences and it is therefore important to emphasise to all parents the effect of such a move on the child(ren) and their relationship with the other parent.
In order to move a child or children permanently from the jurisdiction of England & Wales the parent with care needs to obtain the consent of the other parent sharing parental responsibility. Where consent is not forthcoming an application must be made to the court for leave to remove.
The case of TC and JC (Children: Relocation)  EWHC 292 (Fam) concerned a mother’s application for leave to move to Australia with her two young children.
The mother was an Australian citizen and the father a British citizen (he also held an Australian permanent residence visa). They married in 2006 and lived in Australia before moving to England in 2010. The mother subsequently became unhappy in England and in May 2011 abducted the children to Australia. The father made an application in Australia for their return following which they were returned to the UK.
The mother then issued her relocation application to which this case is concerned. The case was unusual in that whichever jurisdiction it was decided the children should live, it was agreed that the non resident parent would move to that jurisdiction. Cafcass were unable to make a clear recommendation.
Mostyn J stated that the principle to be applied “is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be”. The guidance suggests the following questions need to be answered in determining whether or not to grant permission to relocate abroad (assuming it is the mother making the application):
- Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?
- Is the mother’s application realistically founded on practical proposals both well researched and investigated?
- What would be the impact on the mother, either as a single parent or as a new wife, of a refusal of a realistic proposal?
- Is the father’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
- What would be the extent of the detriment to him and his future relationship with the child were the application granted?
- To what extent would that detriment be offset by extension of the child’s relationships with the maternal family and homeland?
He concluded that the decisive factor in favour of the mother’s proposal was that refusal of her application would bear more heavily on her than the other way around. Therefore the mother’s application was granted, and because of the father agreeing to also relocate to Australia, joint residence was also ordered.