International
Relocation of Children:
American and
English Approaches
JUNE [2006] INTERNATIONAL FAMILY LAW
Jeremy D Morley
Attorney-at-Law, International Family Law Office, New York,
USA and James H Maguire
Partner, Cobbetts LLP, Manchester, England
Courts in
the USA and England have long struggled with international
relocation applications. This article reviews the approaches in both
jurisdictions.
The US Approach
The US approach to international
relocation cases can be appropriately described as both confused and
confusing. Since child custody disputes are a matter of state
jurisdiction, there are over 50 different jurisdictions in the USA
that handle child relocation cases.
Most relocation cases
involve moves from one state to another or even from one place in a
state to another place in the same state. The principles that govern
intrastate or interstate relocations also govern international
relocation cases.
Law of relocation
The current state of US relocation
jurisprudence reflects three distinct and contradictory trends. The
first trend was the traditional view that relocation was ‘a bad
thing’ that should be discouraged. Many states enacted statutes that
created a rebuttable presumption that a change of a child’s
principal residence is not in the best interests of the child. In
other states, the presumption against relocation was a matter of
common law. The presumption survives and is the law in several
states including Alabama (Ala Code 1975 Sec 30-3-169), Missouri (Mo
Stat Ann Sec 452 377), Nebraska (Tremain v Tremain 264 Neb
328, 646 NW2d 661 (2002)) and Virginia (Parish v Spaulding 26
Va App 566, 496 SE2d 91 (1998)). Some states frame the rule as one
that requires a custodial parent who wishes to relocate to establish
that the move will substantially improve the custodial parent’s and
the child’s quality of life. Gruber v Gruber 400 Pa Super
174, 583 A2d 434 (1990). In these states, the burden of proof is
heavy, which severely limits the chances of securing judicial
permission to relocate.
The second
trend, which flourished a decade or so ago, was to favour relocation
unless it were shown in a specific case as being likely to hurt the
child. The change was reflected in presumptions and burdens of
proof, in both statutory law and case‑law, many of which continue in
full force and effect today in many states. Such states favouring
relocation include Tennessee (the parent who spends more time with
the child may relocate unless it is established that the relocation
has no reasonable purpose or would pose a threat of specific and
serious harm to the child which outweighs the threat of harm to the
child of a change of custody; Tenn Code Ann § 36-6-108(d)(1)–(3));
Wisconsin (the burden is on the non‑custodial parent to establish
that a proposed move is unreasonable and not be in the best
interests of the child; Wis Stat Ann 767 327; Hughes v Hughes
223 Wis2d 111, 588 NW2d 346 (CtApp 1998)); and Washington State
(there is a ‘rebuttable presumption that the intended relocation of
the child will be permitted’; Rev Code Wash Sec 26 09 520; see
Ramirez v Holland (In re RFR) 122 Wn App 324, 93 P 3d 951 (Ct
App 2004)).
A variation on
the straight presumption favouring relocation is a two-step
approach, as utilised in Connecticut and New Jersey, whereby the
custodial parent must reach a certain threshold by demonstrating a
good faith motive for the move and that the move will not harm the
child and then the burden swings to the other parent to show harm to
the child that would result from the move (Ireland v Ireland
717 A 2d 676 (Conn 1998; Baures v Lewis 770 A 2d 214 (NJ
2001)).
The third
trend, which is the current favourite, has been to abandon most of
the presumptions and to require that each case be analysed
individually and at great length to determine what is in the best
interest of the child before an individual decision can be reached.
This is the approach that was adopted by New York’s Court of Appeals
in the landmark case of Tropea v Tropea 665 NE 2d 145 (NY
1996) and it has gradually spread to other states, such as Georgia
(Bodne v Bodne 277 Ga 445, 588 SE 2d 728 (2003)), Arkansas (Blivin
v Weber) 354 Ark 483, 126 SW3d 351 (2003), Florida (Fla
Stat Ann Sec 61 13(2)(d)(3)) and then to California.
California
over the past few years has been the focus of the relocation debate.
Although court decisions about the burden of proof are hardly the
conventional fodder of heated political dispute, California has
witnessed fiery debates in its legislature, as well as on radio talk
shows and internet blogs, about the burden of proof in children’s
relocation cases. The argument has been so emotional and the
pressure on the judiciary so intense that, in 2003, the California
legislature took the astonishing step of legislating its approval of
a specific court decision, In re Marriage of Burgess (1996)
13 Cal 4th 25, which had held that a custodial parent had a
presumptive right to relocate children and had shifted to the
non-custodial parent the burden of proving that his active role was
‘essential’ to his children’s well‑being. Thus, Family Code, Sec
7501(b) provides that ‘It is the intent of the Legislature to affirm
the decision in In re Marriage of Burgess 13 Cal 4th 25
(1996) and to declare that ruling to be the public policy and law of
this state’.
In the
following legislative session, those opposed to ‘move-aways’ engaged
in a furious effort to have California legislation enacting the
reversal of Burgess. Just as in other areas in which
politicians employ clever labels to influence public opinion,
Americans who want to make it difficult for custodial parents to
take their children to live in distant locations have taken to
referring to such parents as ‘move-aways’. At that point, the
California Supreme Court issued another landmark ruling in the case
of In re Marriage of La Musga 88 P3d 81, 12 Cal Rptr 3d 356,
32 Cal 4th 1072 (Ca 2004). That decision significantly altered the
Burgess formula by reducing the extent of the burden of proof
on non-custodial parents who oppose relocation and by authorising a
case-by-case custodial analysis in each and every relocation case.
Although the La Musga decision sparked a furious, but
ultimately unsuccessful, campaign to overturn it in the legislature,
the ruling has in fact served to defuse the passions, since it is
difficult to express outrage at a rule that states, in substance,
that there are no rules and that every case must be treated as
completely unique.
International cases
A review of the
international relocation cases in the USA reveals no clear trend,
except that state courts generally apply to international cases the
same principles that they or the state legislatures have established
in domestic cases, although there are relatively slight
modifications. Indeed, since the distance between many parts of the
USA is much greater than that between US states and Canada, Central
America or the Caribbean, courts have sometimes applied far more
lenient standards to proposed relocation to neighbouring countries
than to distant places in the USA. Thus, in Arnold v Arnold
847 A2d 674 (Pa Super 2004) a Pennsylvania court held that:
‘While we
acknowledge that relocation to certain foreign countries may
pose additional hurdles that a court may be forced to consider
when presented with a relocation issue … we do not find
relocation to Canada to be one of those countries.’
A Vermont court
refused to engraft onto the Vermont relocation statute additional
factors to be considered in the event of a proposed relocation to
another country, rejecting the father’s contention that
international relocations raise unique issues (Osmanagic v
Osmanagic 872 A2d 897, 16 VtLW 122 (Vt 2005)). Moreover, courts
have sometimes expressed favour for foreign relocation, at least for
a limited period of time, as something of substantial inherent value
(Carncross v O’Connell, 302 AD2d 931, 753 NYS2d 916 (4th Dept
2003)).
In recent
cases, relocation requests have been granted for moves from Texas to
Germany (Lenz v Lenz 79 SW3d 10 (Tex Sup Ct 2002)), Oregon to
The Netherlands (Hamilton-Waller v Waller Ore App Lexis 1451
(OrApp 11/09/2005)), Connecticut to Japan (Bottinelli v
Bottinelli 2003 Conn Super Lexis 3525 (Super Ct Ct 2003),
Connecticut to Israel (Goldfarb v Goldfarb 2004 Pa Super 412
(Pa Super 2004), California to Spain (In re Marriage of Lasich
99 Cal App 4th 702, 121 Cal Rptr 2d 356(Cal Ct App 2002) and Florida
to Jersey in the Channel Islands (Muniz v Muniz 789 So2d 370
(Fla App 2001).
Perhaps
surprisingly, in recent years several requests for relocation from
the USA to England have been denied, but an analysis of the cases
reveals that each had special circumstances which legitimately made
the proposed moves inappropriate. Thus, in a Rhode Island case, the
mother wanted to marry and live with a man in England. She agreed to
an amended order of joint custody that gave physical custody of the
child to the father in Rhode Island, with extensive visitation for
her. Later, she applied for physical custody for herself in England.
The court found that the mother had previously put her romantic
interest ahead of the child’s and since there had been no subsequent
change of circumstances, denied her application (D’Onofrio v
D’Onofrio 738 A2d 1081 (RI 1999)).
In a
Pennsylvania case, an English couple had moved to the USA with their
two young children so that the husband could accept a job offer.
They had had a third child while in the USA. Their original plan had
been to return to England after a few years. They had all obtained
‘green cards’ after residing for several years in the USA. The wife
petitioned to relocate to England with the children so they could be
with her family. The husband objected because his career situation
was significantly better in the USA and any job in England would
leave him with less time with the children. The oldest child, age
10, testified that she wanted to stay in the USA. The Pennsylvania
court denied the mother’s application, holding that she had not met
her burden of proving that relocation was in the best interests of
the children (Spring v Spring, Phila Ct Com Pl Lexis
106 (Pa 2002) aff’d 830 A2d 1061, 2003 Pa Super Lexis 3139 (Pa Super
2003)).
Some courts
have expressed concern about a party’s immigration status and the
need to provide for a possible Hague Convention on the Civil Aspects
of International Child Abduction 1980 (the Hague Convention)
application in a foreign country should a parent abduct the child.
In Ish-Shalom v Wittmann 19 AD3d 493, 797 NYS2d 111 (2d Dept
2005), a New York appeal court authorised a mother’s relocation to
Florida, but expressed its concern that the mother – a German
national who had strong continuing ties to Germany, was in the USA
on a visitor’s visa and had previously abducted the child to Florida
‑might subsequently abduct the child to Germany. New York courts
refuse to award joint custody unless the parties agree, but on this
occasion the court replaced a sole custody order with an order of
joint legal and sole physical custody, for the express purpose of
giving ‘rights of custody’ to the father for use in future Hague
Convention proceedings.
In the
California case of In re Marriage of Condon (1998) 62 CalApp
4th 533, the court devoted great effort to analysing the
international component. The court held that the proponent in
international relocation cases must make adequate provision for
continuing contact between the child and the left‑behind parent and
for guaranteed enforceability of the California custody order in the
foreign nation.
In Condon
and subsequent cases, the California courts have fashioned
international relocation orders that impose some stringent
conditions. In one case, the court conditioned relocation to Israel
on the relocating parent’s fulfilment of six separate and distinct
conditions (Abargil v Abargil 106 Cal App 4th 1294, 131 Cal
Rptr 2d 429 (Cal Ct App 2003)). The parent was required to:
(1) post
a substantial financial bond in a specific amount sufficient to
ensure her compliance with the court’s judgment and orders;
(2)
consent to California’s continuing jurisdiction over the child;
(3) agree
to a prohibition against attempting to modify the judgment
except upon application to a California state court;
(4) agree
that any attempt by such parent to modify the judgment by
application to any non-California court could be deemed a
violation of the court’s judgment and grounds for forfeiture of
the bond and other appropriate sanctions;
(5)
register the trial court’s judgment with the proper Israeli
authorities; and
(6)
refrain from taking the child to Israel until the judgment was
registered and until the trial court made a further
determination that she had fully complied with the court’s
judgment.
Californian
courts have also imposed (or appeal courts have recommended)
additional terms, such as:
(1)
requiring the relocating parent to annually register the custody
order under the Hague Convention;
(2)
requiring the relocating parent to waive extradition if an
arrest warrant is issued for parental kidnapping under the
federal international child kidnapping statute (18 US Code Sec
1204);
(3)
providing that support payments will be forfeited in the event
of non-compliance; and
(4)
requiring the moving parent to deposit support payments in a
trust fund to finance travel for visitation.
Condon,
above; In re Marriage of Sellahewa, (unreported) (No
D040143 (Cal Ct App Dist4 09/29/2003); In re Marriage of
Lasich, above.
In addition,
the courts have provided for many methods of shaping custody orders
so as to alleviate the disruption of contact between the relocating
child and the left-behind parent. Such provisions include:
(1)
providing longer periods of visitation during school breaks as
compensation for the loss of more frequent visitation;
(2)
requiring the relocating parent to arrange for an adult to
accompany the child during travel; and
(3)
requiring the relocating parent to arrange for the use of
technological services such as the internet and
videoconferencing to enhance contact with the left-behind
parent.
(Abargil,
above; Lasich, above; Condon, above).
The English approach
By contrast, the
English approach could be said to usually favour the mother who
wishes to relocate to a foreign jurisdiction, and sometimes that
permission to remove is granted too easily, but is that so?
The law
Relocation
applications have been brought either under s 13, where there is a
residence order, or under s 8 of the Children Act 1989. Such
applications are, therefore, subject to the welfare paramountcy
principle in s 1(1) and, where the application is under s 8, the
welfare checklist in s 1(3). Section 13(1)(b) requires a parent
wishing to remove a child permanently from the jurisdiction to
obtain leave of the court in order to do so. Prior to this, the
welfare of the minor as a paramount consideration was contained in s
1 of the Guardian of Minors Act 1971. The implementation of the
Children Act 1989 in 1991 gave most parents the concept of parental
responsibility and diminished the impact of a former custody order
and the perceived control of the custodial parent over the decision
making with regard to the children of the family.
It useful to
examine the relevant case-law over the last 30 years. Poel v Poel
[1970] 1 WLR 1469 involved a proposed removal to New Zealand where
the mother’s new husband had good job prospects. The Court of Appeal
recognised that the welfare of the child should be the primary
consideration. It was concluded that this was one of those cases
where the court should not interfere with the way of life selected
by the parent who has custody. This approach can best be summed up
using the words of Sachs LJ:
‘When a
marriage breaks up, a situation normally arises when the child
of that marriage, instead of being in the joint custody of both
parents, must of necessity, become one who is in the custody of
a single parent. Once that position has arisen and the custody
is working well, the court should not lightly interfere with
such a reasonable way of life as is selected by that parent to
whom custody has been rightly given. Any such interference may,
as my Lord [Winn LJ] has pointed out, produce considerable
strains which would not only be unfair to the parent whose way
of life is interfered with but also to any new marriage of that
parent. In that way it might well in due course reflect on the
welfare of the child. The way in which the parent who properly
has custody of the child may choose in a reasonable manner to
order his or her way of life is one of those things which the
parent who has not been given custody may well have to bear,
even though one has every sympathy with the latter on some of
the results.’
Ormrod LJ adopted
a similar approach in A v A (Child: Removal from Jurisdiction)
(1980) 1 FLR 380, which involved a proposed relocation to Hong
Kong.
‘The test
which is often put on the basis of whether it is reasonable for
the mother to return to her own country with the child, I myself
doubt whether it provides a satisfactory answer to this
question. The fundamental question is what is in the best
interests of the child; and once it has been decided with so
young a child as this that there is really no option so far as
care and control are concerned, then one has to look
realistically at the mother’s position and ask oneself the
question: where is she going to have the best chance of bringing
up this child reasonably well? To that question the only
possible answer in this case is Hong Kong.’
This approach was
followed in the Court of Appeal in the case of Moodey v Field
(unreported) 13 February 1981, where it was asked whether or not the
proposed move was reasonable and if the answer is ‘yes’, then
permission should only be refused if it is clearly shown beyond
doubt that the interests of the child and the interests of the
custodial parent are incompatible.
That approach
was question by Balcombe J at first instance in Chamberlain v De
La Mare (1983) 4 FLR 434. The welfare of the child was held to
be the paramount consideration and that each factor should be
weighed against another and no factor taking priority against the
mother. That case involved an application by a mother with custody
of two children to take them to New York with her new husband for
his job requirements. His decision was reversed by the Court of
Appeal. Tyler v Tyler [1989] 2 FLR 158
involved an application to remove to Australia which was refused,
recognising, as it did, that it is bound to be hard for one
unfortunate parent who has to be disappointed. The Court of Appeal
pointed out that cases of this nature are always hard, cause
distress, each one depends on its own facts and that the court
should think long and hard before refusing permission to take the
children.
It is Thorpe
LJ, both at first instance and presently, who has sought to apply
such authority, for example in MH v GP (Child: Emigration)
[1995] 2 FLR 106, Re H (Application to Remove from Jurisdiction)
[1998] 1 FLR 848 and Re C (Leave to Remove from Jurisdiction)
[2000] 2 FLR 457. In MH v GP, Thorpe J (as he then was)
had regard to the presumption he refers to in the custodial parent,
but decided on the facts of the case that it did not identify what
would best promote the welfare of the child and, therefore, refused
leave to the mother. This is an example of a case where although the
presumption or general prima facie position could be said to apply,
it was displaced. In Re H, a father’s appeal was dismissed
against a decision allowing the mother to relocate to Alabama. The
court commented that these difficult cases require very profound
investigation and judgment. Thorpe LJ felt that not a lot is to be
gained from past decisions and, that in his judgment, these cases
had not evolved or developed since Poel.
This led to
two differing approaches, the first as per Chamberlain,
created a presumption in favour of the reasonable application of the
custodial parent, and at the same time, as per Re C (Thorpe
LJ dissenting), a balance needed to be struck to determine whether
or not the resulting risk of harm to the child was such as to
outweigh the presumption that reasonable proposals from the
custodial parent should receive the endorsement of the court
(presumption in both contexts being used in a non‑legal sense).
It was then in
the leading case of Payne v Payne [2001] EWCA Civ 166, [2001]
1 FLR 1052 that Thorpe LJ regretted the use of the word
‘presumption’. He expressed a view that concepts of presumptions and
burden of proof have no place in the Children Act 1989 proceedings
where the judge exercises a function that is partly inquisitorial.
Thorpe LJ then
went on to say:
‘In summary a
review of the decisions of this court over the course of the
last thirty years demonstrates that relocation cases have been
consistently decided upon the application of the following
propositions:
(a)
the welfare of the child is the paramount consideration; and
(b)
refusing the primary carer’s reasonable proposals…is likely to
impact dramatically on the welfare of her dependent children.
Therefore her application to relocate will be granted unless the
court concludes that it is incompatible with the welfare of the
children.’
It has often been
said that a happy and contented mother (proposing to relocate) makes
for a happy and contented child. Logically, and as a matter of
experience, a child cannot draw emotional and psychological security
and stability from the dependency unless the primary carer herself
is emotionally and psychologically stable and secure. The parent
cannot give what she herself lacks (as per Payne). Thorpe LJ
therefore concluded in Payne:
‘Thus in most
relocation cases the most crucial assessment and finding for the
judge is likely to be the effect of the refusal of the
application on the mother’s future psychological and emotional
stability.’
In relocation
cases there is an acute dissension between parents and often involve
cross applications by the mother and the father. No order is simply
not an option. Re X and Y (Leave to Remove from Jurisdiction)
[2001] 2 FLR 118 should not be followed. The court has to impose one
order or the other in the application of the paramount principle of
welfare.
The impact of human rights
Following the
commencement of the Human Rights Act 1998 on 2 October 2000, it was
not long before a father, opposing an application to relocate,
raised an argument that such a relocation constituted a breach of
his right to family life under Art 8 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms 1950 (the
European Convention) (as anticipated in Re A (Permission to
Remove Child from Jurisdiction: Human Rights) [2000] 2 FLR 225).
It is thought that the European Convention does not necessitate a
revision of the approach to relocation cases. However, the idea that
the effect of the European Convention has no place in this area is
no longer sustainable in light of the decision of the European Court
of Human Rights in Glaser v United Kingdom (Case No 32346/96)
[2001] 1 FLR 153 and the decision of the Court of Appeal in
Douglas, Zeta Jones and Northern & Shell plc v Hello plc [2005]
EWCA Civ 595, [2006] QB 125.
In a
united family, the right to family life is a shared right. Once
that family disintegrates, the separating members’ separate
rights can only be to a fragmented family life (as per Payne).
With the asserted Art 8 rights of the father, there are also the
Art 8 rights of the primary carer, the mother. It was envisaged
in Payne that an appeal may well arise in which a
disappointed applicant will contend that s 13(1)(b) of the
Children Act 1989 imposes a disproportionate restriction on a
parent’s right to determine her place of habitual residence.
The
acknowledgement of child welfare as paramount must be common to most
if not all judicial systems within the Council of Europe. It is also
enshrined in Art (1) of the United Nations Convention on the Rights
of the Child 1989. In Johansen v Norway (1996) 23 EHRR 33,
the court held that ‘“particular weight should be attached to the
best interests of the child … which may override those of the
parent”’. In L v Finland (Applications No 25651/94) [2000]
ECHR 176, the court emphasised that the consideration of what is in
the best interests of the child is of crucial importance.
Payne guidance
To guard against
an assumption that the mother’s proposals are necessarily compatible
with the child’s welfare, Thorpe LJ went on to suggest the following
discipline as a prelude to conclusion:
‘(a) Pose the
question: is the mother’s application genuine in the sense that it
is not motivated by some selfish desire to exclude the father from
the child’s life. Then ask is the mother’s application realistic, by
which I mean founded on practical proposals both well researched and
investigated? If the application fails either of these tests refusal
will inevitably follow.
(b) If however
the application passes these tests then there must be a careful
appraisal of the father’s opposition: is it motivated by genuine
concern for the future of the child’s welfare or is it driven by
some ulterior motive? What would be the extent of the detriment to
him and his future relationship with the child were the application
granted? To that extent would that be offset by extension of the
child’s relationships with the maternal family and homeland?
(c) What would
be the impact on the mother, either as the single parent or as a new
wife, or of her realistic proposal?
(d) The
outcome of the second and third appraisals must then be brought into
an overriding review of the child’s welfare as the paramount
consideration, directed by the statutory checklist insofar as
appropriate.’
Dame Butler-Sloss
P in Payne suggested the following considerations which
should be in the forefront of the mind of a judge hearing one of
these cases; and that all relevant factors need to be considered
and weighed in the balance:
(1) The
welfare of the child is always paramount.
(2) There
is no presumption created by s 13(1)(b) in favour of the
applicant parent.
(3) The
reasonable proposals of the parent with a residence order
wishing to live abroad carry great weight.
(4)
Consequently, the proposals have to be scrutinised with care and
the court needs to be satisfied that there is a genuine
motivation for the move and not the intention to bring contact
between the child and the other parent to an end.
(5) The
effect upon the applicant parent and the new family of the child
of a refusal of leave is very important.
(6) The
effect upon the child of the denial of the contact with the
other parent and in some cases his family is very important.
(7) The
opportunity for continuing contact between the child and the
parent left behind may be very significant.’
For recent cases,
Payne is still the leading authority. In Re B (Leave to
Remove: Impact of Refusal) [2004] EWCA Civ 956, [2005] 2 FLR
239, the concept of an ever‑shrinking globe and ‘lifestyle choice’
mean that courts can expect to hear many more of these cases. In
R v R (Leave to Remove) [2004] EWHC 2572 (Fam), [2005] 1 FLR
687, the mother had spent parts of her life in France and the USA.
Her application to permanently remove the children to France was
dismissed. By balancing all the relevant factors, with the welfare
of the children as the paramount consideration, it was not
appropriate to approve their permanent removal from the
jurisdiction. Interestingly, in Re Y (Leave to Remove from
Jurisdiction) [2004] 2 FLR 330, the mother wanted to return to
the USA, but the case involved an informal shared care arrangement
for the child between the parties. Hedley J dismissed the mother’s
application on the basis that shared care took the case outside the
scope of Payne. The Court of Appeal has not yet considered a
case of a shared care arrangement.
International contact
The world is
becoming a smaller place and international travel is comparatively
cheaper. Equally, communication is cheaper and the options more
varied, particularly with the advent of the internet and
webcam/messenger capabilities. All this tends to work against the
secondary carer who often bases an objection to relocation on the
fact that contact will be significantly diminished. The English
courts can look at the possibility of what contact shall be
available in that foreign jurisdiction to, for example, the father
if and when relocation takes place and potentially impose conditions
prior to removal. ‘Mirror orders’ can be considered subject to the
foreign country having power to make such orders if the child is not
yet habitually resident there (and conversely it is interesting to
note how Singer J dealt with such a scenario in Re P (A Child:
Mirror Orders) [2000] 1 FLR 435). Where it is likely that a
mother, in such a case, will be given permission to relocate, the
potentially left‑behind father should not forget what direct and
indirect contact should be sought and the relevant preconditions to
be put in place prior to removal. This should include the foreign
jurisdiction recognising and enforcing the provisions of the
agreement/order.
In Re G
(Removal from Jurisdiction) [2005] EWCA Civ 170, [2005] 2 FLR
166, which involved an application to relocate to Argentina, Thorpe
LJ emphasised the importance of future contact:
‘There needs
to be a very clear definition of the contact order, certainly in
the first 12 months and perhaps the first 24 months after
removal. That order needs to be very clearly written in this
jurisdiction and there needs to be an investigation of ways and
means of achieving a mirror order in Buenos Aires.’
The impact of
Council Regulation (EEC) No 2201/2003 of 27 November 2003 concerning
jurisdiction and enforcement of judgments in matrimonial matters and
the matters of parental responsibility, repealing Regulation (EC)
No 1347/2000 (2003) (revised Brussels II) as from 1 March 2005 shall
go some way to assist left‑behind fathers in enforcing contact
orders pursuant to Art 41 (or Art 21). However, careful
consideration still needs to be taken where the foreign jurisdiction
is not an EU Member State (including Denmark) and also whether or
not that country is or is not a member of the Hague Convention. It
should not be forgotten that when a child leaves the jurisdiction he
or she shall inevitably lose his or her place of habitual residence
and will ultimately acquire, if only by virtue of the passage of
time, a new habitual residence in the other jurisdiction. It is
contended for a father that safety and security measures need to be
built into any final order providing for relocation and contact, so
that the arrangements can work as far as they can, in the interests
of the child.
Conclusion
The US and English
approaches to relocation applications each follow the principle that
priority should be given to the best interests of children. The
approaches vary in how they are implemented. Courts and legislatures
across the USA are struggling to establish standards:
‘that are
flexible enough to allow trial courts to weigh the complex
variables that come into play in relocation cases, and yet not
so flexible that they fail to provide guidance to the trial
courts and predictability to the litigants and lawyers
involved.’ (Hawkes v Spence 878 A2d 273 (Vt 2005).
The US courts have
shifted away from more rigid formulations that provided some
guidance to practitioners and their clients in favour of elastic
concepts that require courts to evaluate every case on its own
merits.
By contrast,
over the last 30 years, the English courts have generally provided
more useful and helpful guidance to practitioners. This has allowed
practitioners to give relatively clear and confident advice to
parents about possible outcomes. However, this may change as shared
care becomes more prevalent. In the USA, concerns about joint
custody have contributed to the reduction of clear relocation
guidelines.
While the US
trend enhances the likelihood that a specific case will yield a fair
result but at the expense of predictability and economy, the English
approach serves to create greater predictability of result and tends
to encourage parents to apply for relocation orders instead of
taking flight with their children. In the international arena,
significant uncertainty and substantial expense fuel international
child abduction. Clear guidance limits the volume of contested
litigation and reduces the number of international child abduction
cases. |
