Family Law Update

Originally published by the solicitors Journal on 19 November 2013 and reproduced with their kind permission.

Divorcing parents tend to communicate better when going through mediation, which is all for the better particularly when children are involved, says Austin Chessell

The growth in cheap flights and increasing employment prospects arising from globalisation has made it more common for separated parents to consider permanently relocating abroad and wanting to take their children with them.

In such cases, consent needs to be given by the non-relocating parent for the relocation to take place, which is rarely easy to obtain, as it inevitably creates further tension between the parents and re-opens the pain experienced during the initial post-separation childcare discussions. The non-relocating parent often fears losing all contact with the child if relocation happens. Where relocation is contested, it is worth considering what the main legal principles are which determine whether the relocation should take place and whether consent is best obtained through the courts or by mediation.

In my experience, mediation is often more successful where parents have a good understanding of these legal principles and 
can then use them to shape their own 
relocation agreements.

Payne test

The leading case that parents need to be aware 
of is Payne v Payne [2001] EWCA Civ 166. The case was an unsuccessful appeal by a father against an order allowing the mother (who, significantly, was the main carer) to remove the child to New Zealand. The guidance in this case is known as 
the ‘Payne test’.

The test means that the court must consider if the proposed relocation:

n derives from a genuine desire to start a new life abroad (i.e. not being selfishly motivated to cut one parent out of the child’s life); and

n has been well thought out and researched having regard to the practicalities of 
the situation.

If the application to relocate is deemed to 
be genuine and realistic, the court must then weigh up:

n if the opposing parent’s reasons are based on a genuine concern for the future child’s welfare, or if there is an ulterior motive.

n what effect the relocation would have on the relationship between the parent who is not relocating and the child. The court will also need to consider the extent to which this would be balanced by any new relationships that the child would form in the relocation country.

n what the impact would be on the parent 
who proposed the move if the application 
was refused.

While taking the guidance into account, the
court’s paramount concern will always be the child’s welfare. However, in Re K [2011] EWCA Civ 793 the Court of Appeal ruled that the only point of law from the Payne case was that the child’s best interests must be the paramount consideration of the court. In this case, (unlike Payne) care was shared between the parents. The court decided that in shared-care cases the application should be decided on the facts of each case, the welfare of the child and the statutory considerations which are set out in section 1(3) of the Children Act 1989, often referred to as the Welfare Checklist.

In this case, a father brought a successful appeal against an order which gave the mother permission to leave and take the children to Canada. The court confirmed that in the circumstances of this case, the approach followed in Payne v Payne was not appropriate because care was shared between the parents, which requires a deeper analysis of the impact of the relocation on the child. As a result of this case, a lot of parents may now find it harder to persuade the court that the relocation should take place where there is a shared-care arrangement in place.

Payne is only applicable where the relocating parent is the main carer. The approach in Payne should not be followed where the parents share the caring of the children in more or less equal proportions. Consideration must be given to all 
of the facts.

Sharing information

As a mediator, my role is different to when I am acting as a solicitor in that in mediation I can only share the above legal information with mediation clients but cannot advise them. Parents can then use that information and seek legal advice from solicitors where appropriate to make joint decisions on the relocation through mediation.

In August 2013, Dr Rob George, from Oxford University, found in a report called Relocation Disputes in England and Wales: First Findings from the 2012 Study that one-third of all requests for relocation are not permitted by the family courts.

In the current economic climate, parents are questioning why they should spend potentially tens of thousands of pounds on a relocation case involving several hearings when the case can be mediated in a quicker and more cost effective way (especially where a relocation allowance has not been provided by an employer) and, in light of 
Dr George’s report, may stand a higher chance 
of success.

Every mediation case is unique based on the client’s circumstances, but the following are 
issues that commonly arise in international relocation cases which parents (and mediators) need to consider:

n Childcare time – when should the contact take place and where?

n Who is booking and paying for the international travel?

n If the child is young, how will they travel? Will relatives need to be involved to ensure travel can take place?

n Will contact between the child and the non-relocating parent take place during term time and in what form, e.g. face to face, email, phone or Skype?

n Making decisions for future education, 
after school activities and medical treatments – it may be that the parent who is not relocating wants to visit the school abroad 
or neighbourhood before any schooling 
decisions are made.

n Being provided with copies of future medical records and school reports.

n If an order is prepared after mediation, will this need to be mirrored abroad? The clients will need to liaise with their legal advisers here and abroad to get this confirmed.

n If the order is not followed, should the relocating parent provide a legal costs allowance for the parent who is not 
relocating? There may not be funds for this, 
but in some cases there may be.

n Will the parent not relocating have more contact prior to the move?

n Will the parent agree for the relocation to be 
for a defined time before returning?

n Will the children return in the future for their university education? If the children are old enough and the parents agree, the mediator can meet with the children to find out their wishes and feelings on this and then pass agreed information back to the parents before a decision is made.

n How will extended family members remain involved with the children?

n Will the relocation take place in a way that is not disruptive to the child?

Better communication

I have worked on relocation cases through the courts as a solicitor and through mediation as 
a family mediator. In my experience, parents communicate better in mediation than they do 
in litigation as the focus is on collective interests not fixed positions. If a parent is unhappy with 
a court decision, litigation will most likely 
continue with appeals being made, but, in mediation, parents tend to respect what was agreed and rarely look to amend a memorandum of understanding.

With mediation information assessment meetings (MIAMs) likely to become compulsory 
for all applicants if the Children and Families Bill 2012-2013 is enacted, it would not be surprising 
if more international relocation cases are resolved through mediation rather than through the 
court system. SJ

Issue:

Vol 157 no 44 19-11-13

Austin Chessell is a family mediator at FAMIA (www.famia.co.uk) and 
a collaborative family solicitor 
at Shortlands
www.shortlands.co.uk