This post contains the Executive Summary of a research paper from my study of relocation cases in England and Wales. The full paper is now available to download without charge from the Social Science Research Network.
Relocation
disputes are cases between separated parents where one of them proposes to move
to a new geographic location with their child and the other parent objects to
the proposals. This Research Paper reports the first set of findings from a
major study of relocation cases in England and Wales based on cases decided in
2012. The data used come from 118 first instance court decisions in relocation
cases (96 proposed international moves and 22 proposed moves within the UK) – the
CC sample – and 187 responses from family lawyers to a research questionnaire
about relocation disputes –the RQ sample. We use statistical techniques to
analyse those cases and investigate patterns of outcomes.
Part 1 | Relocation Law in England and Wales: A Summary
The law
governing relocation disputes, while different for proposed international moves
and for those proposals involving moves within the United Kingdom, is
relatively straightforward and can be explained simply. The welfare of the
child concerned is the paramount consideration, with guidance then offered by
appellate cases as to how the child’s best interests should be ascertained by
judges in international and domestic relocation cases respectively.
Part 2 | Previous Research on Relocation Disputes
The
simplicity of relocation law belies the extent to which relocation disputes are
immensely difficult for all those involved, whether the children, the parents,
the lawyers or the judges. Previous research in England and Wales has shown that
there are concerns that the law itself, although well understood, may not have
struck the right balance in its pursuit of the child’s best interests. However,
while this view was shared by many, others thought that the English courts had
shifted their approach in the mid- to late-2000s and were now approaching
relocation cases more ‘rigorously’. At the same time, researchers in other jurisdictions
were investigating case outcomes and patterns of decision-making in a way that,
until now, has not been possible in England and Wales because of the lack of
access to the relevant materials.
Part 3 | International and Domestic Relocation Disputes:
Characteristics of Cases and Families
Cases in the
dataset came from all over England and Wales, but there was a clear dominance
of cases coming from London and the South East of England. Cases were heard by
judges at all levels, with the bulk of international cases being tried by
Circuit Judges and most domestic cases going before District Judges. In both domestic
and international cases, applicants were more likely than respondents to be
legally represented, and those who had legal representation usually had both a
solicitor and a barrister.
In both
international and domestic cases, most disputes involved a single child, with
an average number of children per case of 1.5. In terms of children’s ages, the
mean age was around 7 (just under for international cases, just over for
domestic ones). International cases more often involved pre-school aged
children than did domestic disputes, but in both samples the bulk of children
were aged 4 through 9; few children aged 12 or over featured in either
category.
The vast
majority of applications were brought by mothers (around 95%). In terms of care
arrangements, a small minority of cases (around 5%) involved equal shared care
arrangements, while a larger minority (7% in the CC sample, 38% in the RQ
sample) involved 65/35 shared care arrangements. Conversely, in the CC sample
overnight contact cases account for well over half of all cases, whereas in the
RQ sample only around a quarter of cases were reported to be in this group. In
both samples, a small minority of cases involved direct contact not including
overnight stays or no direct contact at all.
Looking at parents’
relationships statuses, we see that parents in the international sample were
more commonly married to one another previously, whereas the domestic cases
involved a higher proportion of former cohabitants. In terms of each parent’s
current relationship status, applicant parents are more likely to have
remarried (35%, compared with 7% of respondents), whereas respondents are more
likely to be in a cohabiting relationship or to be single (23% and 59%
respectively, compared with 10% and 42% for applicants).
Some 70% of
applicants in the international sample were foreign nationals seeking to leave
the United Kingdom, most (though not all) proposing to return to their original
home country. In terms of destinations for the international cases, the biggest
category involved proposed moves to other EU countries (around 40%), with
‘North America’ and ‘Australia/New Zealand’ each accounting for around a
quarter of cases. Domestic cases had an average travel time between the current
location and the proposed destination of around 2.5 hours, though with a range
from 1 hour to 11 hours.
Part 4 | International Relocation Disputes: Outcomes and
Patterns
The overall
success rate for litigated international relocation cases in the CC and RQ
samples combined (N=141) was 66.7%. Given that English law was said to be
‘pro-relocation’, it is interesting to compare this figure with the equivalent
data from Canada (68%) and New Zealand (68%), which are respectively ‘neutral’
and ‘anti-relocation’. Of course, court outcomes are not the whole story
because pre-litigation advice is an important filter, but the similarity is
noteworthy.
We then go
on to identify factors which appear to be important in influencing case
outcomes, which we divide into three broad groups. The first group relates to
courts, judges and lawyers. The data suggest that courts in London and on the
South East (1) Circuit are more likely to refuse relocation applications than
courts elsewhere in England and Wales (around 62%, compared with 85%). There is
also a difference based on the type of judge hearing the case, but the data
suggest that this difference may be accounted for by case allocation: different
judges hear different types of international relocation case. While most cases
involved both applicants and respondents with legal representation, the data
suggest that if one side does not have a lawyer then his or her chances of
getting the desired outcome are substantially reduced (though this is
correlation, not causation).
The second
group of factors focuses on families and their biographical characteristics. In
terms of children’s care arrangements, the overall picture suggested by the
data is that applications where the respondent parent does not have overnight
staying contact with the child are more likely to be allowed (around 75%) than
cases which do involve staying contact (around 55%); but the amount of staying
contact (whether amounting to shared care or not) does not make a significant
difference. There is some suggestion from the data that cases involving
multiple children are less likely to be allowed than cases involving a single
child, but the small number of cases with several children makes it impossible
to be sure of any pattern. In the international cases, the ages of the children
made no apparent difference to case outcomes. In terms of the parents’
relationship statuses, we saw that the parents’ previous relationship with each
other made no difference to case outcomes, and the same was true of the
respondent parent’s current relationship status; but applicants who were now
married had a significantly higher chance of their relocation application being
approved than did applicants who were single (just over 80% for those who were
married, compared with 50% for those who were single).
The third
group of considerations looked at proposed destinations and the applicant
parents’ motivations for seeking to relocate. The overall picture in terms of
destinations seems to be that the shorter the proposed move, the more likely it
is that the relocation will be allowed – so moves within the EU are allowed
more often than moves to North America, which are in turn allowed more often
than moves to Australia or New Zealand (in the CC data, 80%, 71% and 52%
respectively). Consistently with previous research, we see that most applicants
have several reasons for seeking to relocate, but we focus on four key groups:
‘going home’, ‘new job’, ‘lifestyle’ and ‘other’. The findings here are not
straightforward, but the overall picture seems to be that cases involving a
return home or a specific job offer have a greater than average chance of being
allowed (72% and 70% respectively), while those seen as lifestyle decisions are
significantly less likely to be allowed (48%). Most opposition to relocation
applications was based on the child’s loss of relationship with the respondent
parent; but in those cases where the respondent argued that the proposed move
was poorly planned or that it was brought in bad faith, the application was
less likely to be allowed (56% and 50% respectively).
Part 5 | Domestic Relocation Disputes: Outcomes and Patterns
The overall
success rate for litigated domestic relocation cases in the combined sample
(N=37) was 70.3%. Given that orders restricting internal relocation are thought
to be unusual, it may be surprising that this figure was so similar to that for
international relocation (66.7%). However, it should be remembered that many
internal relocation cases will not be litigated, so the range of cases before
the courts may be different in the two contexts.
Starting
again with issues relating to courts, judges and lawyers, the data suggest that
courts in London and on the SE-1 circuit may be more inclined to allow internal
relocation applications than courts elsewhere – the reverse of the pattern seen
in the international data – though this variation may be explained by case
characteristics. A finding more in keeping with the international data is that
District Judges seem to be more inclined to prevent domestic relocations than
are Circuit Judges.
Looking at
families and their biographical characteristics, similar patterns are seen as
emerged from the international data. Children’s pre-relocation care
arrangements appear strongly correlated with case outcome, with the proportion
of relocations allowed increasing as the non-moving parent’s involvement in the
child’s daily life decreases. In terms of children’s ages, cases where
relocation was allowed had a lower mean age of child (7.0 years) compared with
cases that were refused (8.3 years), though it is unclear why that would be the
case.
Rather than
proposed destinations, the focus in the domestic data is on distances of the
proposed move. The data show that shorter moves (two hours or less) are less
likely to be allowed than longer moves (61.1%, compared with 78.9%). Again, it
is unclear why that should be the case, given that on-going contact will be
easier to maintain after a shorter move. In terms of reasons for seeking or
opposing domestic relocation, the data are equivocal about whether motivation
makes much difference. No observed differences were close to being
statistically significant, and the differences were in any case marginal.
Part 6 | Discussion and On-Going Work
The
statistical data have revealed a wealth of findings, but have also raised many
questions. The next stage of analysis will return to the judgments and look
qualitatively at judicial reasoning. After that, the project turns to parental
experiences. Parents in 30 relocation cases have been interviewed about their
experiences, and those interviews will be analysed and the conclusions added to
the overall project.
