Can I Move My Child Abroad After Divorce?

31 December, 2014

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.