Relocation – whether internally within the jurisdiction or externally to a different jurisdiction – is akin to taking a child into care or adoption: the child is effectively transferred from one family to another. It is estimated that in between 40% and 50% of leave to remove cases contact between the child and the “left behind” parent breaks down within 2 years of relocation; overall figures are not available, but it is certainly well over half.
Two studies into leave to remove cases were conducted in 2009. The first was carried out for the charity Reunite by Dr Marilyn Freeman ; it revealed that:
· For many fathers contact after relocation – whether within or outside the UK – remains fraught with difficulty. Direct contact, is often only “aspirational”: the reality is that after the cost of litigation, relocation and setting up two homes neither party can afford it; some fathers are bankrupted. The courts seldom consider such practicalities when allowing removal.
· Contact is easily thwarted once the child is in the new country. A father who has flown halfway round the world only to be sent home again will find it difficult to persevere. Even such “Disneyland contact” as he may achieve will be far from ideal and difficult to maintain if it only happens once or twice a year: direct contact can be very strange and unsettling for a child who hasn’t seen their father for 6 months. Long journeys place considerable strain on children, and they can become hostile to international contact.
· “Mirror orders” are not applied by many countries or applied as might be hoped. The UK courts have no power to enforce them in non-EU countries which may take a different view of the case. Proposals for contact put forward by the applicant parent are often wildly optimistic.
· Relocation weakens a family financially. There is a high cost of the relocation itself, the cost of the legal dispute, and the additional cost of maintaining two homes. If the father has a second family, there may be very little money available for contact.
· Even when a father is able to maintain contact, often at great expense, there is little chance that relationships with the wider family of grandparents, cousins and half-siblings will survive the relocation.
· Indirect contact, ordered as part of a Contact Order, rarely happens and cannot be relied on. Most forms of communication depend on the resident parent if they are to take place, and if that parent is obstructive the communication simply will not happen. Sometimes no address or telephone number is left, and the relocating parent effectively disappears with the child.
· CAFCASS promises parents it will be involved to ensure that contact continues; the reality is that once the child has been out of the jurisdiction for three months CAFCASS no longer has any influence.
· It is important to remember that the purpose of relocation in a great many cases is to stop contact entirely. Undertakings made by resident parents to continue contact are notoriously unreliable (though they may fool the courts): they are made in order to get the leave of the court for removal, not out of any commitment to protect the relationship with the other parent.
The second study was by Professor Patrick Parkinson of the University of Sydney . He found that 59% of relocation cases require judicial determination compared with 13% of other family cases. Costs are high; some parents lose their homes; some mothers return home within a year; some fathers move to follow the mother. Contact can be difficult or impossible to maintain and children are burdened by travel. In too many cases judges rely on wishful thinking,
In any given case where a judge is inclined to allow the relocation, he or she needs to ask whether the relocation would still be in the best interests of the children even if the proposed contact does not happen at all.
The result of a debate by Resolution (the association for family lawyers) in 2005 by 77 votes to 19 was that leave to remove is too easily granted. The study showed that the welfare checklist is largely inadequate in leave to remove cases and has urged that it be rewritten to rectify this.
Neither the Children Act nor the Human Rights Act has had any impact on the judgement of leave to remove cases over the last 40 years.