Is divorce reform around the corner? We take a look at this question in our latest blog and in the light of the recent Owens vs Owens case where the husband was represented by Hughes Paddison.
If I want to move abroad can I take my children with me?
LANDMARK CASE OF MK -v- CK RELOCATION
MK -v- CK 2011 EWCA C iv 793
Can a child be taken out of the UK to live in a different country? This is a question that often arises when parents separate. We live in a world that has become small with the ability to travel cheaply and easily and be in a different country whether it is for work or pleasure within a matter of a few hours. It is a much debated question when parents separate whenever a mother or father then decides to move from the UK and whether or not they take the children with them. Even moving within the UK can prove to be a vexed issue let alone a move abroad. This was the question put to the Court in the case of MK -v- CK.
BACKGROUND TO MK -v- CK
The mother is Canadian origin. The father is Polish. The father moved to England in 1993 and the mother arrived 10 years later. The parents married in London on 27th July 2004. They have two daughters, one born 6 November 2006 and the other born on 8th January 2009. England was not only the girls place of birth but more importantly it was their settled home. After the birth of their second child, sometime in 2009 the marriage became unhappy and the mother and father concluded that the marriage was over. In July 2010 divorce proceedings were filed and the mother vacated the matrimonial home and rented a flat in London. In due course an Order was made in August 2010 providing that on a fortnightly cycle the girls would spend 5 nights out of 14 with their father and 9 nights out of 14 with their mother. Thus the girls spent a fair amount of time with both parents but the greater number of days with their mother.
The mother then decided she wanted to relocate back to Canada. After the marriage broke down she stated that she had become isolated living in the UK and it was causing her stress. She did not like living alone with the girls in London. All her family were in Canada. Following the breakdown of her marriage she wanted to go home.
Whether the parents are married or unmarried, if children are settled in England and Wales and one parent decides to move abroad, notwithstanding that it would be the primary career and in most cases the mother, the children cannot be taken abroad without the other parents consent. If that consent is not forthcoming then the parent wishing to move to a different country, as in this case the mother, must apply to the Court to obtain the Judge’s permission.
FIRST INSTANCE DIVISION
The mother made an application to a Circuit Judge for permission to return home to Canada taking both girls with her. As part of her application she would have set out her proposals for the father to visit the children in Canada and may even have made proposals for the girls to come to England to visit their father. In addition there would have been proposals for indirect contact. This is contact which is via the telephone or Skype. The father objected the mother’s request to return home to Canada with their daughters and argued that they should remain in England. An interesting aspect to this case is the fact that the father had spent many years of his childhood in Canada and it was a country he was familiar with and an educational system he was familiar with. However, he maintained his objection to the move to Canada.
In support of the mother’s application to move to Canada she had produced evidence from her GP which confirmed the level of the mother’s distress and the stress she was suffering and that this would continue if she remained living in the UK.
To assist the Judge in deciding whether or not the children should move to Canada CAFCASS officer was appointed and he had to report to the Court. (A CAFCASS officer is someone who is employed within the Court Service to assist the Court in issues as to the children’s welfare and on some occasions the children’s wishes and feelings.) The CAFCASS report is to assist the Judge with facts and to balance the issues that need to be determined when considering whether or not a mother’s application for relocation to a foreign country is to be considered even if that foreign country was at one time her home or even the children’s place of birth. The Judge is to weigh up the balance between the detriment to the mother if the children remained in the UK, against the detriment to the children if they moved to Canada. The CAFCASS officer concluded in his report that the balance came down against the move notwithstanding what the mother’s GP had said about her feelings of isolation and distress. The CAFCASS officer thus, recommended that the mother’s request to move to Canada should be refused. However, the Judge stated that it would be essential for the mother to feel supported as a parent and an adult in her own right and that this, amongst other factors was more important. The Judge who heard all the evidence decided that it was in the children’s best interest to have a happier mother even if it meant them spending less time with their father. On 3rd February 2011 the County Court Judge granted the mother’s application to relocate the children to Canada.
THE DECISION IN THE COURT OF APPEAL
The father was unhappy with the decision. He appealed the decision. The father criticised the Judgement primarily on the basis that the County Court Judge not only had rejected the recommendations of the CAFCASS officer but had done so without proper analysis of the report, all the facts, and had misinterpreted previous case law. The father criticised the Judge for coming to the wrong conclusion and not considering his position and that of the children and only that of the mother. The father’s appeal was successful.
As a result of the appeal the outcome was to reinforce that the Court’s approach in every relocation case is to give consideration to the children’s welfare. The effect of the mother’s unhappiness should her application to move abroad be refused, is to be only one component part of the issues the Judge has to consider. The mother’s unhappiness is not to override the children’s welfare. In considering the children’s welfare the Judge must take into account a number of factors such as but not limited to:-
- The effect upon the children of such a move;
- Any harm that would be caused to the children;
- How capable is each parent in respect of meeting the children’s needs including emotional welfare;
- The children’s physical, emotional and educational needs;
- The likely effect upon the children to a change in their circumstances and their routine and suchlike;
- The interests and concerns of the parents. Even if that parent is the primary carer that parent’s interests should not be the overreaching and deciding factor.
It would also appear that the greater the role the father plays in the childrens lives the greater the damage that will be caused to the children and the relationship they have with the father by relocating. So even though as in this case, the children spent more time with their mother than their father the quality of time spent with their father was of significant importance.
IN CONCLUSION AND RAMIFICATIONS
Whether or not parents are married or unmarried, if one parent wants to move abroad with their children, they either require the permission of the other parent or an order of the Court. Even if the parent as in this case, is wanting to ‘go home’, that is not in itself an overriding factor and nor, is the distress and/or unhappiness or isolation that may be caused to the mother should her application fail. The Court of Appeal embraced the importance of considering that the welfare of the child(ren) is the primary concern of the Court in these relocation cases. Therefore, it is fair to say that each and every case will have to be considered on its facts.
What is likely is that the parent’s feelings and/or the distress that may be caused to the parent by not being allowed to return to their home country or relocating with a new partner will not now be the deciding factor.
DO YOU NEED ADVICE REGARDING RELOCATION?
Regardless of whether or not there are residence or shared residence orders in place, or even just contact order, if both parents whether married or unmarried have parental responsibility then a decision to permanently relocate to a different country with the children is a decision that must be taken jointly. Therefore if you are contemplating such a move you may wish to speak to one of our solicitors who deals with this area of law. Or, if the co parent of your children has stated that they intend to relocate you may wish to seek advice to understand what you may do. The case law surrounding the issues regarding relocation are complicated and the factors involved are not straight forward. Therefore, it is important that parents receive the benefit of legal advice before making an impulsive decision either to agree to relocation, or to suggest relocation.
At Hughes Paddison we have dealt with many relocation cases and therefore have extensive specialist expertise in this area.