When the parents of a child divorce or separate the foundation of that child’s world is often thrown into turmoil and the vey basis of their security and stability is threatened as they are no longer have equal access to their caregivers.

From the child’s perspective the best possible outcome is where they can readily access both parents who are able to communicate amicably and freely with one another. Of course, there are situations where no contact with a parent is better than contact; for example where the parent is a substance abuser, alcoholic or there is alleged serious domestic violence. Sometimes where the relationship between parents is highly conflictual it has been evidenced in research that it can be better for that child to be shielded from frequent heightened hostility by moving away from that parent.

From the moment of separation of the parents, the child’s relationship changes dramatically with the left behind parent, who is no longer able to sustain the level of involvement in the child’s life they once did. Most mental health professionals would argue that post separation of the child’s parents, there should be as little change as is possible to afford the child the continuity and stability they require. Once the child is moved the seamless and spontaneous relationship they have had with the left behind parent is interrupted and the child will lose the connection with other family members and friends, thus adding to the disturbance to their routines and way of life.

Characteristics particular to the child may also create difficulties in relocation. For example the child may be part of an ethnic minority group or be removed from a school offering special academic support to another which offers limited support.

The ages of children also affect how they respond to relocation and change following relationship breakdown. For example, infants are unable to communicate their feelings, but may experience distress. Toddlers can misunderstand the reason for relationship breakdown and may blame themselves, thinking their behaviour has caused this situation when the primary carer relocates with them, which can feed into a sense of blame and abandonment by the left behind parent. Older children may want to intervene as peacekeepers and create parity of contact time with them and their parents, but may get caught up in the conflict more easily as they take sides with one parent or the other. However in the mind of a pre-adolescent there is at least an understanding that the left behind parent will return, which is something a younger child cannot understand.

Whatever the age of the child, the absence of a parent followed by change in where they live, loss of friends and activities they have left behind and a new school can be a huge source of stress and anxiety for a child.

For the reasons cited, child relocation offers one of the harshest dilemmas for the family courts. Whatever decision the court makes, the child is likely to suffer. Notwithstanding this, despite the court’s denial that there is a prejudice in favour of the parent applying to remove the chid (usually the mother), in around at least 75% of applications for leave to remove in this jurisdiction will succeed at some point.

The effect of overseas relocation on the child is strangely something which has not amassed much research and once the decision has been made by a family court to allow a family to relocate the situation or effects on a child are not monitored so there is very little data.

Also, relocation as an issue is relatively new and infrequent with the geographical areas widespread. However a prominent report based into the effects of international relocation, which was the first of its kind, funded by the Ministry of Justice and produced by Marilyn Freedman working with Reunite (a leading charity on international parental child abduction) states that ‘Generally, it was felt that children are not well served by the current relocation system and that insufficient attention has been paid, to date, to the effects of relocation on the child. At the same time, the over-emphasis on the happiness of the mother means that the system is apparently stacked against fathers, even custodial fathers, who feel that they suffer a serious legal injustice through the relocation system in this country.’

Further in 2009 the think tank, the Centre for Social Justice, called for ‘A change in the law regarding relocation… to take better account of the changed patterns of parenting, the considerable impact on the child of relocation away from home and other home environment features and wider family members, yet taking account of the increased movement of families.’

The traditional focus of the court on the psychological impact of relocation upon the primary carer (usually the mother) still overshadows relocation applications in the family courts and the impact on the child of such a move, with their loss of family and security, is often given less consideration. The approach by the family court is also often considered outdated in that it does not consider the increasing role of fathers in childcare over the past few decades, hence reference above to the changing patterns of parenting.

Clearly there is a need for further extensive research into this area and a development in the thinking of our law courts with emerging research. In the foreword of Marilyn Freeman’s report as mentioned above, Mr Justice Singer himself states that “so far as this jurisdiction is concerned the conclusion advanced is that there may – the author would say ‘should‘ – emerge some readjustment to the ‘pro-relocation‘ stance routinely adopted here.”. This is an argument that is likely to run and run.

If you are a parent considering a move overseas and need more information and advice please contact me on natalie.friday@london-family-solicitor.co.uk or telephone number 020 3755 3151 and I will be happy to assist.

Written by Natalie Friday Family lawyer.

See this article on divorcedparents.co.uk

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