Relocation of Children following Ex Pat Divorce

30-Aug-2011 Last month in the Court of Appeal case of MK v CK [2011] EWCA Civ 793, the court allowed the father’s appeal to prevent his ex-wife from moving to Canada with their children. The Court of Appeal Judges found that the lower court had not balanced the pros and cons of the mother’s application to remove the children from the jurisdiction.

Case Facts
The mother is of Canadian origin and the father of Polish origin but spent his childhood in Canada. The parties married in 2004. They have two daughters aged 4 and 2. The parties divorced in 2010. The parties had a shared residence order, which provided that the practical care of the children was shared by both parents. The mother felt lonely and isolated in the UK following the divorce and therefore applied to relocate back to Canada to be closer to her parents and family.

The Court’s Approach
During the last ten years there has been a trend by the courts to allow an application by one parent to move abroad if they had genuine reasons for a move, a well thought out plan and on the basis that if forced to stay they would be unhappy and the children would suffer as a result. The court in this case carefully considered all of the facts, the predominant feature being that both parents shared the care of their children. The unanimous ruling of the three panel Court of Appeal stressed that the only principle of law is that the welfare of children is paramount. A balancing act had to be achieved in considering the balance between the detriment to the children if they remained and the detriment that would result from a diminished relationship with their father if they relocated. The court ruled that it was in the children’s best interests to remain in the UK.

The leading authority on the issue of relocation is the case of Payne v Payne. The court noted that in that case the applicant mother was the primary carer for the children and therefore the court can consider that the children are dependent on the primary carer’s stability and wellbeing. However, the approach in Payne should not be adopted in cases where the practical burden of care is shared between the parents.

The Court’s Decision
The mother’s application was refused because the damage to the children caused by the reduction in the contact with their father, should she be allowed to relocate, outweighed the damage arising from the distress to the mother if the application was refused.

Moving Forward
Essentially, if a shared care arrangement is in place, the courts will be far more reluctant to allow one parent to take the children to live in another country. If the father plays a significant role in the children’s lives, the greater the damage caused to the children by allowing the relocation. The distress that a mother is likely to feel if her application to relocate is refused will form part of a number of factors that a judge will take into account, but it will not be the deciding factor.

Our Advice
This case illustrates how careful the courts will be to ensure that the welfare of the children is the absolute priority in any relocation applications. From a practical perspective it is important that should the relationship break down you and your partner discuss where each of you would want to be. Where would be the best location for the children? Can the problem be solved by a long-term plan being agreed? Then you can continue fully parenting your children without recourse to the courts.

Our family lawyers have a wealth of experience in complex relocation proceedings. Following the ruling in MK v CK it is likely that parents will seek shared care arrangements when dealing with residence applications, particularly where there is an international element e.g. one parent has ties to another country other than England and Wales.

For more information contact us

---