It is inevitable that after separations or divorces some parents will want to take their child abroad to live; maybe back to where their family originates from, emigration to the sun, for a new job or to join a new partner who is based abroad. Whenever I represent a parent who applies to Court for permission to take their child abroad to live I warn them that there can be no ‘’winning’’ parent. That’s because if the Court gives permission for the parent to take the child abroad to live then potentially a lot of the child’s holiday time will be spent back in England so the successful parent loses out on quality holiday time. The parent left behind isn’t the winner as they aren’t able to spend mid-week or weekend time with the child. With time zone difference phone calls, face time and Skype can be difficult to organise.
A judge has highlighted, in a case called S and S, the view that on an application to relocate children it is not possible to produce a truly good outcome but only to choose the one which is the ‘’least bad’’. The judge was being asked to decide whether two boys, aged 15 and 13, should move from England where they lived with their mother to Switzerland to live with their father, his new partner and their half sibling.
This family in the S case is truly international with fabulous wealth generated from the oil industry. The family originates from Russia, had lived in Cyprus and in 2014 the mother and two children moved to England. In the judge’s view as the family had every conceivable material advantage it would be easy to create the same bubble of luxury and wealth in any country for these much travelled international children.
The Court heard that the two boys strongly wanted to live with their father and had become disrespectful to their mother. An independent social worker reported that the children’s relationship with their mother would be more likely to recover if their wishes were followed rather than refused. Given the ages of the boys, at 15 and 13, the judge thought that respecting their wishes and feelings, even if they might be foolish, was an important welfare consideration.
Despite his reservations about the father’s behaviour, the judge decided to grant permission to the father to relocate the children to Switzerland on condition that he make financial support to the mother to enable her to establish a Swiss home to enable the children to maintain a relationship with both parents.
The Court decided that the children would live with both parents under what is known as a child arrangements order spending an unequal amount of time with their mother and father. The Court judgment is notable as it makes relocation conditional on financial support and highlights the judge’s unease about the children being made parties to the Court proceedings and with the children’s’ lawyer being funded by their father with the children’s solicitor first meeting with them without their mother’s knowledge.
It is rare for families to have such wealth that a father can fund a pied-a-terre home for the mother in his planned country of choice of Switzerland as well as to continue to provide financial support to enable her to maintain her home base in England. However this family case may make solicitors question whether conditions can be placed on an agreement for one parent to relocate with a child or on a Court order to relocate. Conditions on agreements and Court orders such as the funding of trips home , hotel accommodation abroad and financial help to see children might still not produce a truly good outcome for the children concerned but, in the words of the judge, it may result in an outcome which is the ‘’least bad’’.
For information about any aspect of taking children abroad to live , to oppose an application or for advice on any other aspect of children law please call me on +44 (0) 1625 728012 or contact me by email at [email protected]