Friday, 23 March 2012

Relocation Disputes in the Family Courts

Family law engages with areas of people's personal lives and feelings which the law normally keeps well clear of - things like love, passion, intimacy, commitment and betrayal, to adopt Professor John Dewar's list in his article 'The Normal Chaos of Family Law'. Most separated parents have very little to do with the family court. They sort things out for themselves in one way or another, often negotiating and re-negotiating their new and complex post-conjugal relationship many times as their children grow up. But other parents are simply unable to sort things for themselves. Sometimes the parents are too angry and too hurt to reach agreement, and sometimes their cases are just too hard for compromises to be found.

Relocation disputes (also known as 'leave to remove' cases, 'removal from the jurisdiction' cases or, in North America, 'move-away cases') are usually in the latter category. These are cases which arise when one parent proposes to move to a new geographic location and take their child or children with them. These cases often involve proposals to move to a different country, though they might also be about moves within the UK. Even quite short moves can be disputed sometimes (see E v E [2006] EWCA Civ 843, where the move in question would have been just over an hour's drive), though these cases usually settle long before the court gets invovled.

There are many complications to relocation law, and many commentators inside and outside the legal professions have strongly-held views. I have been researching in this area for about 6 years now, and I still find angles that I hadn't thought of before and questions that I can't answer. One difficulty is that both parties to the relocation dispute have good arguments to support their positions, and it is hard to think that one of them automatically has the better of the argument.

The parent seeking to move (usually but by no means always the mother) can say that she is entitled to live her own life and not be tied to her former partner for the rest of her life. She is often wanting to leave to the UK to return to her original home country, often seeking support from her wider family in bringing up the children. She might have a new partner who needs or wants to move - maybe for work, for family, or simply to go in search of a better life. From an equality point of view, it can also be noted that parents who are not performing the main care-giving function in their children's lives are free to move as and when they like, regardless of any impact on the children or other parent.

On the other side, the parent opposing the relocation (usually but not always the father) can fairly point out that his relationship with his children is also important for their wellbeing and upbringing, and that he will be sidelined in their lives if they move away. A weekly chat on Skype is hardly going to fill the gap left by a day spent together every week (and in fact the non-moving parents in relocation disputes are often seeing their children far more often than this). Moving to a new country is often disruptive for children in terms of schooling, and if the country in question is culturally very different from the UK then some children struggle to settle.

There is lots that we know about relocation disputes in the family courts, but far more that we don't. The family courts in this country keep especially poor administrative data about their cases, which means that we do not know some incredibly basic information. Things like: how many relocation cases are litigated every year. Or how many relocation applications are allowed and how many are refused. Or how many cases are brough by mothers, how many by fathers, and how many by other family members. Or how old the children are, on average, in a relocation case.

For anyone interested in reforming the law - and there are many people who think that relocation law in this country should be looked at again - this lack of information is a real problem (though they don't always seem to realise it!). How can we know whether the allegation that the law is biased in favour of relocation is true or not when we don't even know how many applications are granted?

There are lots of ways that research could help to answer these problems. One approach, which the British Academy is funding me to try, is to gather as many family court decisions in relocation cases as possible over a 12-month time-frame. All the family court judges in England and Wales have been asked to send in copies of the judgments and orders that they make during 2012 to me to analyse. The going is quite slow so far - just 6 or 8 cases per month have arrived so far - but it is hard to know how successful the research is becuase we don't know how many cases there actually are! (The first question you want to ask as a scientist is about response rate, but this research can never answer that question - I don't know whether there really were only 8 cases in January 2012 and I got them all, or whether there were 80 and I got only 10%.)

Anyway, only time will tell - but the need for relocation law is not going to go anywhere any time soon. Migration rates are increasing every year and, as people increasingly share the care of children in post-separation parenting arrangements, the arguments about proposed relocations are surely going to become more frequent too. The more we can learn about these cases, the better equipped we will be to know how best to resolve them.

Further details about my research project and publications can be found on my Faculty webpage.

4 comments:

  1. Having been on the receiving end of an 'internal relocation' for which permission was given, after a proven deliberate attempt to relocate in secret, I can confirm that the extra travelling for contact has made contact extremely difficult. My son dislikes having to 'always travel with dad'. The journey now taking up to 2 hours from Bristol to Birmingham, rather than the 25 minutes it was previously. That is quite a noticeable change, especially for a child who was 5 years old when the mother's relocation was permitted in 2009.
    Despite asking for my ex to pay half of the increased travelling costs, this was refused. The answer received when that was asked for being "I'm not going to deal with that now". I subsequently suffered a spinal injury, leading to me living on benefits (£67.50 per week) and as the travel costs (i.e. vehicle fuel) totalled £30 per return journey (i.e. £60 every other weekend) that meant my income comprised solely of benefits, was reduced by half. Then there is the fact that NRP's don;t get any extra money and ex-partners are not ordered to proportionately pass on either the Child Benefit or tax Credits received, meaning that I had to cover my son's subsistence costs out of benefits provided only for the purpose of supporting my own needs. So, it was not difficult to work out that not only was my income cut in half, but the extra subsistence costs (i.e. during school holidays etc) meant I ended up with £4 per week for food and was unable to afford to use any heating when my son was not with me. Once again I asked for a proprortionate allowance from my ex, which was simply ignored by the court and left unadjudicated, despite a clear case for it to be looked at.
    As a result, I was unable to afford the vehicle fuel to return my son after one school holiday, which resulted in my ex making an application to the court to stop contact, because I could not afford contact - which was granted. Sadly, I no-longer have any contact with my son, due to circumstances that were not my fault.

    Obviously, academics need to engage in 'real world' research that will ultimately benefit children.

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  2. While I appreciate that the areguments that you briefly run through on each side of relocation debates are just examples, I do think they are rather unconvincing:

    E.g."she is entitled to live her own life and not be tied to her former partner for the rest of her life. "

    Of course this is not true for either parent- both are tied to each other at least for the 18 years they are bringing up a child together. It is the only real indissoluble commitment.

    Likewise, "From an equality point of view, it can also be noted that parents who are not performing the main care-giving function in their children's lives are free to move as and when they like, regardless of any impact on the children or other parent. "

    In fact, both parents are free to move without their children, as long as they find good alternate care (ie the other parent can take them in). I am sure many fathers in these cases would be happy for this to be the case, and then the relocating partner could have the weekly skype calls and so on. Yet this is not considered as an option. Whereas the mother and the children are taken as a unit, the father is considered an optional extra (in general, and in the implication of the quote above). But the whole family is one unit.

    In terms of equality of course all the arguments about new partners, extended family, better opportunities and so on might equally apply to the partner who wishes to stay.

    I would argue that:

    1. The (social) expectation should be that families will live in one city /location
    2. If one parent wishes to move, it should be expected that the first consideration is whether the whole family can (reasonably) move there, just as you would in a non divorced family, and if there are a number of options, which if any is workable location wise and there should be a geniune attempt at this, eg allowing enough time to find jobs etc. Likewise, if a person seeks to relocate they might be expected to support their partner whilst they seek work there etc- just as a married couple would.

    Only when these are exhausted should separating the family be considered. I think the view that there are two independent adults is quite destructive. There are two committed adults.

    I would personally be in favour of pre-child agreements, rather like pre-nups where the basics of bringing up a family together are agreed in advance and adhered to in the case of divorce. It would not solve all problems, but would be a starting point.

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