A recent Court of Appeal ruling prevented a Canadian mother from taking her children back to her home country.  Henry Brookman discusses the case and its possible impact on future cases of this type.  Published in Telegraph Online.

It might seem that a parent choosing to take their children to another country after divorce is an infrequent occurrence.  However, Resolution (the Solicitors Family Law Association) has estimated that in over 1000 cases per year, a UK parent is granted permission by the courts to leave the country with their children. In most instances, it is the mother who applies for permission.  However, a recent case concerning an Expat Canadian mother could well influence future cases of this type.

Court’s decision to allow relocation, overturned


After her original application, the Canadian mother was granted permission by the judge to leave the country with her two children aged four and two.  However, the ex-husband and father of the children appealed, and in a landmark decision, the Court of Appeal denied the mother the ability to relocate with her children.  The reasoning being that as the father looked after the children for two nights each week, he played too major a role in their lives for this relationship to be broken. 

The Court of Appeal’s decision explained

The Court of Appeal took a slightly different stance on the family’s situation to that typically taken by the courts.  Up until this case, the courts in England and Wales have taken the view that if the primary carer (usually the mother) requests to relocate – but is rejected – and this decision has a negative impact on her emotional state, this in turn could have a detrimental impact on the welfare of the children. As the family courts place the welfare of the children above any other consideration, they would then be likely to grant permission to relocate.

In the Canadian family’s case, the Court of Appeal maintained the standpoint that the children’s welfare was paramount.  However, the court considered the loss in contact between father and children as a likely greater source of distress than would be caused by the mother being forced to stay in the UK.

This decision is quite likely to have an influence on future decisions regarding relocation.  In essence, if the non-primary carer (typically the father) plays a significant part in the children’s lives, the courts are now more likely to consider the impact of a ‘broken’ relationship between father and child above the emotional wellbeing of the mother.  Obviously the same situation would apply if roles were reversed and the father was the primary carer applying to relocate.

What are the implications of the decision?

For some, this decision will be considered a victory for ‘common sense’ as it is likely to grant the non-primary carer more influence over where their children live.  However, others will be concerned that this ‘influence’ could be abused and some parents may use the Court of Appeal’s decision as a means to maintaining control over their ex-spouse above considering what is best for the children. 

If you would like to know more about this issue please contact Brookman Solicitors for more information.

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