Separated families, relocating to different ends of the country
A recent case in the Court of Appeal known as Re “R” looked at whether a child should be immediately returned to a different part of the country by one parent against the wishes of another parent.
The court made it clear that although it may well be in the best interests of a child to be returned there is absolutely no presumption still less a rule that this should be the case and that everything depends upon the individual circumstances of a particular case. Whilst this may sound initially surprising, it is actually on closer consideration probably the only way of dealing with these difficult types of situations.
In Re “R” the mother had without the father’s prior knowledge or consent taken their one year old child from the family home in Kent and moved to the North East to stay with her parents. Both parties agreed that the child should live with the mother. The father told the mother he was going to make an application for the child’s return to Kent and the mother then made the First Application without Notice in the North East for what is called a Prohibited Steps Order.
The father later complained that the District Judge had not been told that the father had not actually threatened to remove the child and was intending to make his own application. He, the father, then made an application in the North East for the child to be returned to Kent whilst the issues were dealt with by the Court there. The District Judge refused the father’s application and refused to transfer the matter to Kent. The father then tried to argue that the Courts standard response should be to order a summary return in domestic abduction cases. This is in line with what was said to be the presumption of return to a place of habitual residence in cases of international abduction.
The father tried to rely upon a case called Re “C” in which the Court of Appeal had decided that there should not be a difference in the way that domestic relocation and international relocation cases were considered by the Courts. In both cases the child’s welfare was of paramount consideration. In this case the Court of Appeal rejected the father’s argument and drew a distinction between relocation cases and abduction cases. Re “C” was a relocation case and in it the Court decided that the same approach in domestic and international relocation cases should be adopted.
It is clear from this case that we cannot draw any parallels between cases of domestic removal or abduction and international abduction cases. There is no general rule, principle or presumption that children relocated unilaterally within the jurisdiction should be immediately returned.
Everything depends upon the circumstances of the case and sometimes it may be best to leave the child where he or she is until matters have been investigated further. This may be the case if, for example, mother and child are fleeing domestic violence.
If you require advice or guidance on this matter please call us today on 0800 088 6004