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| News: Law Gazette, December 2009 |
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| Disputes over the relocation of children are a by-product of travel, technology, and a smaller world. But recession is also a factor, and courts in all jurisdictions are seeing increasing applications as a result of job-seeking in other jurisdictions. |
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| Marion Campbell phones home. |
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| Parental disputes over the relocation of children are a relatively modern phenomenon. They are a by-product of travel, technology, lowered frontiers and the world becoming increasingly smaller. Recession is also a factor, and courts across all jurisdictions are seeing increasing numbers of applications being brought before them in relation to relocation issues as a result of families job-seeking in other jurisdictions. Judges and child custody evaluators often look on relocation issues as the most difficult to resolve. |
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| Father and son |
| In this jurisdiction, the starting point for any consideration of an application for relocation to change the residence of children must be pursuant to section 11(1) of the Guardianship of Infants Act 1964 (as amended) and, in particular, section 3, which provides: “Where in any proceedings before the court the custody, guardianship or upbringing of a child is in question, the court in deciding that question shall regard the welfare of that child as the first and paramount consideration.” |
| In considering the welfare of the child, consideration by the court must be given to a variety of factors. |
| In the 1990 High Court case of K v W, Finlay CJ, delivering the judgment for the majority in a case concerning the position of an unmarried father in relation to his child, held: “The blood link between the infant and the father and the possibility for the infant to have the benefit of the guardianship by, and the society of, its father is one of the many factors which may be viewed by the court as relevant to its welfare.” |
| The conclusions in K v W were applied in the subsequent Supreme Court decision in the 1996 case of WO’R v EH, where Hamilton CJ approved the words of Finlay CJ in K v W to the following effect: “The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed depending on the circumstances of each individual case. The range of variation would, I am satisfied, extend for the situation for a father of a child conceived as a result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionallyprotected family, when the rights would be very extensive indeed.” |
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| Letter from America |
There is a dearth of Irish case law to guide practitioners in this jurisdiction in terms of advising parties seeking or opposing an application for relocation of their children. The leading authority on the point in this jurisdiction is a decision of Flood J in the 1992 High Court case of EM v AM. In that case, the applicant mother, who was an American woman, met and married the respondent father in 1983. They lived in Dublin as a family with the applicant’s
child from a previous relationship and had another child together in 1986. The marriage broke down, resulting in the respondent father leaving the home in or about July 1987. Arrangements were entered into vis-à-vis parenting. The respondent husband enjoyed regular weekend and midweek access to the child. |
These arrangements ultimately broke down. The applicant then applied to the court and sought
leave to remove the parties’ child to America on the basis that she had secure employment there with accommodation provided by her parents, and that she would forward generous access to the respondent husband. The respondent rejected this application and argued that the child was well settled in Ireland and enjoyed a very good relationship with their extended family. |
Flood J, in determining whether or not to grant the application, set out a list of factors to which the court “must” have regard:
1) Which of the two (hypothetical outcomes) would provide the greater stability of lifestyle for the child,
2) The contribution to such stability that would be provided by the environment in which the child will reside, with particular regard to the influence of (his/ her) extended family,
3) The professional advice tendered,
4) The capacity for, and frequency of, access by the non-custodial parent,
5) The past record of each parent in the relationship with the child, insofar as it impinges on the welfare of the child, and
6) The respect in terms of the future of the parties to orders and directions of this court. |
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| Ultimately, it would appear that Flood J was swayed by expert evidence and concluded that the applicant was in a better position to offer the child stability of environment, and leave to remove the child from the jurisdiction was duly granted on terms. |
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| Where do the children play |
| The most recent judgment in the Irish courts pertinent to relocation of children is a judgment of Mr Justice Roderick Murphy, delivered on 15 May 2009, in KB v LO’R. This arose out of an appeal from a Circuit Court judgment. In that case, the Circuit Court had made an order appointing the father as joint guardian and joint custodian of three children, with primary care and control to the children’s mother. Before that, the mother was the sole guardian and the father’s applications in that regard to become guardian had not been successful. |
The court had further ordered that the children be allowed to take up residence with their mother in England. A detailed order was made in relation to custody/access. By notice of appeal, the applicant father appealed the part of the judgment in relation to the relocation of the three dependant children. The court, in considering matters, looked at a strong line of authorities from Britain and, in particular, the 1970 decision of Poel v Poel and the 2001 decision of Payne v Payne. The court, in making its decision, was of the view that the welfare of the children and of their mother, who had constituted a unit since 2003, was of
paramount importance. |
| The court believed in this case that the welfare of the children was best served by all three remaining with the mother, the primary carer. The court confirmed the order made by the Circuit Court regarding the children moving to England. The court took on board the line of authority in the English courts dealing with relocation of applications. The line of authority as adopted by the English courts was consistent with the requirements of section 3 of our Guardianship of Infants Act 1964 – the welfare of the children being of paramount consideration. |
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| Land of hope and glory |
| The leading authorities in England and Wales on the standard to be applied in relocation cases are the decisions of the Court of Appeal in Poel v Poel (1970) and Payne v Payne (2001). |
| In Poel, the applicant’s mother wished to emigrate to New Zealand with her husband (whose job prospects were better there), together with the parties’ infant son. The respondent father paid maintenance and had been enjoying regular weekly access. The Court of Appeal overturned the decision of the trial judge, who had initially refused the leave sought, on the basis that the plan would cut off contact between the boy and the respondent father. In the hearing by the Court of Appeal, Sachs LJ stated: “The court should not likely interfere with such a reasonable way of life as is selected by that parent to whom custody had been rightly given. Any such interference may 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.” |
| Payne was an appeal against a High Court decision acceding to a mother’s application to remove a child born to the parties during the marriage (which had subsequently broken down) to her home country of New Zealand in order to live there. In considering that appeal, Thorpe LJ set out a four-stage test in determining relocation applications: |
| a) “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 careful appraisal of the father’s opposition. Is it motivated by the 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 what extent would that be offset by extension of the child’s relationship with the child’s maternal family and homeland? |
| c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal 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.” |
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| The judgments in Payne considered specifically two categories of cases in which the court recognised that the proposed relocation was consistent with the welfare of the child. The first category was that of the repatriating mother, whose only attachment to England came with the marriage and went with its breakdown. The second category was that of the mother who was married again to a man whose roots and whose employment must take him to some other jurisdiction. |
| Recently, it has been suggested that a third category is emerging, which has been labelled ‘the lifestylechoice category’. Clearly, in a lifestyle-choice case, the applicant faces a harder task in satisfying a judge that the refusal of his/her application would profoundly destabilise his/her emotionally and psychologically. The paramount consideration across all relocation applications is the child’s welfare. |
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| Hard lessons |
| An extremely comprehensive review of Australian, English, New Zealand, US and Canadian authorities in relocation cases were conducted by Carmody J in the Family Court of Australia in the case of W v R. Analysing the authorities, Carmody J noted that there was a presumption in favour of relocation in the US; the New Zealand and Canadian courts tended to resist it; while, in England, the child’s welfare was seen as best being served by allowing mothers to chose the geographical proximity between the children and their father, based on the theory that a happy mother meant a happy household. If the only way that this could be achieved was at the expense of contact with the father, then regretfully that is how it had to be. |
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| The gravity of relocation applications for all the individuals concerned is not to be underestimated. The best outcome for any family involved in such applications must be resolution by agreement rather than by court order. Litigation procedures should require a judge to consider and, if appropriate, to direct mediation at a very early stage before positions are hardened and proceedings take over. |
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| Marion Campbell is a solicitor specialising in family law. |
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 For further information, please contact Marion Campbell Solicitors by calling (01) 475 9345, or by filling out an on-line enquiry form. |
