I am often
asked by parents going through divorce and separation whether they will be able
to return to their home country with their children. Each case depends on its
own facts (as judges always tell us!) but one question to always ask is what
would happen if the court were to refuse permission for relocation of the
child.
The High
Court judge Nicholas Mostyn highlighted this issue a recent case regarding an
application by a mother to relocate her child to Sweden permanently. In his
judgement, he set out the criteria which the court must use to assess the
application from his review of the four leading Court of Appeal decisions on
this matter. The welfare of the child is paramount and outweighs all other
considerations, however reasonable they may be. But the criteria also include
asking ‘What would be the impact on the mother (as the
applicant), either as the single parent or as a new wife, of a refusal of her
realistic proposal?’
He stated that : 'The problem with the attribution of
great weight to this particular factor is that, paradoxically, it appears to
penalise selflessness and virtue, while rewarding selfishness and uncontrolled
emotions. The core question of the putative relocator is always "how would
you react if leave were refused?" The parent who stoically accepts that
she would accept the decision, make the most of it, move on and work to promote
contact with the other parent is far more likely to be refused leave than the
parent who states that she will collapse emotionally and psychologically. This
is the reverse of the Judgment of Solomon, where of course selflessness and
sacrifice received their due reward.'
In this case, the prospects of the mother falling into
severe depression if her application was denied was part of the reason Mostyn
granted her permission to relocate.
Mostyn says that the paradox makes decisions in these
cases incredibly difficult. He stated that leave to remove decisions are ‘ the
hardest decision that a judge ever has to make in the field of family law, or,
for that matter, in any field…One or other parent will lose and will be
bitterly disappointed.’
There is more to winning a relocation case than
selfishness, but Mostyn’s comments certainly highlight one very important
aspect of them.