Internal and External Relocation Cases

Hello. Welcome, everybody. My name's stuff to my mood. I'm a solicitor Onda lecturer today that I'm going to be speaking to you about the issues surrounding both internal and external relocation cases have been taking you through some of the key principles. Onda, particularly the developing case law in this field. Andi, despite sigh session being recorded as of July 2007 will take you through. I like to say some of the developing case law, So I wanted to just put this into context, which is where we're dealing with cases where sometimes parents may wish to take Children to say from one part of the country to another. For example, see, looking at internal relocation and then external, of course, is where one is looking to leave the jurisdiction of England Wells, for example, on we look at the law and see what the differences and the similarities are in so far as that's concerned. So one of the first cases really to start off with this this case of re F leave to remove now. This was a case handed down in 2005 by the High Court on It's quite a useful case I'd suggest, because what is it Case does is it really brings into play the thinking behind a previous authority of pain on pain? That 2001 cough, pure case, pain and pain. Many of you will know he's one of the leading authorities on this area, which, although it doesn't necessarily set out the natural factors which our statutory it sets out guidance which into place with the section one of the Children Activated night, which is effectively, what detest is that has to be considered in deciding we're not to allow removal internally and externally. So let's just put this into context. Ovf itself involved a case where you have a 10 year old on his mother, in fact, applied on the Section 13 subsection one subsection B of the Children Act for leave to remove him permanently to Jamaica. I had been living with his mother and he was having contact with his father. His parents were unmarried and his father opposed, but his mother wanted to take him to Jamaica to reside there permanently. Eso is that she could be there also with her out cleaning firm Father Andi mothers. Aim was to set up a bed and breakfast company in Jamaica. On she also claimed that the educational provision in Jamaica would be better, as would be better to know, even as good as what was available in England. Now this is where the court then did apply D criteria under pain and pain and like, say, the ultimate test is one off Section one, which is what's in the child's best interests. But the court was very much guided by the guidance in in pain and pain, which is this firstly section one of her Children after applies to an application for leave to remove which which we know. Secondly, there was no presumption in favour often applicant parent. Thirdly, the applicants proposals must be looked at with great care source to assess. Firstly, whether the motivation to move abroad was genuine and not based upon a desire to, for example, to emulate the contact between the child and a non resident parent. And also one has to look at the proposals to see whether they were based upon realistic and practical really steps that were taken funded upon research on investigations. So that was one of the key things that that was needed to be considered. The other factors in pain and pain are one has to look at the motives off the apparent. Who's opposing the application? Why they opposing? Is this a multi via multi, for example, or are they fears well founded upon the concern? So are they opposing because they really are using the opportunity to really have taken at difference Trey Shin on day, their anger, perhaps towards the other parent? Or are they opposing because they have some genuine concern related that chance? Welfare One also needs to look at the critical impact. Three. Impact off refusal under wealth of a child within the family within the family of the resident parents. So what's gonna be impact upon the paint with care if the application is refused on what is going to be the application? The effect upon d. M. The child? If indeed the application is always not refused, so that would also need to be considered. And the other point in pain and pain was, one has to bear in mind that the reason the proposals of the resident payment wishing to live the child take the child of thought should carry great weight so they for applying to paint and paint principles here. The court took the view that here on the facts, the boy actually had very little insight as to wait and tell in terms of going to Jamaica. He saw really going to make more holiday than anything else well, in a place where he was going to be living permanently, the Muslims proposed over there were genuine, and she was going to look after him and set up a bed and breakfast. It wasn't to reduce contact. Her proposals were unrealistic in terms of income, Um, and also if it felt that the mother's motivation was more so to be closer to a family, then looking really at what would be in the child's best interests so under facts, the court did not, in fact, allow Thea application. Now the other case I thought you may find helpful is the case of DS against our guests. This is this 2009 high Court case on done by Mr Justice Sumner on what's useful about this is sometimes you may find out a person's making application for specific issue order source to temporarily remove a child from the jurisdiction such as on this case whereby here, the mother of the child wanted to take the child to a family wedding overseas in India on. But this is where the father opposed. He was fearful that the mother may not return the child on these types of situations where you've got temporary, remove or certainly in trauma, move for then it may be that one needs to consider the use off appropriate undertakings, for example, and that's what happened here. The court was prepared to accept setting undertakings from the mother cells to ensure that the child would be appropriately returned on type of undertakers are, for example, Syria team. I have to be given undertakings such as, for example, here on the facts. The mother's parents herself had a top it in India and they had volunteered and to send a title deterred security. Also, there would be a declaration to start the order to state that the child was habitually resident in England. Wales. Furthermore, do is going to be recitals to the effect that the mother would given to take us to the effect that she would return the child to England on a date on or before the date that is specified. That should provide. The father would copies off the return tickets in the full light enemy of Wonder Child Be where, when in India on the mother would also given undertake to the effect that she would not obtain or apply for an Indian passport at any time, unless you gave the father at least two months notice. Also, the visa that which the mother got would be only one way in the sense that would be short disappeared. Possible guards in the multiple visa Onda was her mother would return the passports to US listers by designated date. So there a number of undertakings here based upon does. The court was prepared, therefore, to enable mother to go for that period of time. So you can see it's very, very important in these types of situations to ensure that if it is a case of temporary removed, without the undertakings that have been obtained or sort all those which are necessary and appropriate, and which will be sufficient to be able to sufficiently addressed issues which are before the court Now, as we mentioned with the pain and pain case, one of the issues the court looked at is the fact that you need to look at the motivation of the person who wishes to take the child overseas. Is it? Don't look to take the child office sees because of a genuine desire for that child's welfare? Was it because as a way of blocking or terminating contact between the child on the day of the parent? What This is where a case of re W is particularly helpful? This 2000 on 11 case This is one where Mother was Australian. She lived in England with her two Children on that she wanted Teoh seek in order to be permanently removed, the Children from a jurisdiction and gone live in Australia with the Children. Now the mother under facts was allowed to take the Children here. The mother decor took TV that mothers motivation was unimpeachable, and that is the contact that he was going to be setting up through. For example, Skype email phone as well as the annual visiting contact of a month was such that you couldn't impeach her in any way. Uh, father's main objection was that he had recent again a new relationship with the Children idea which to lose that. But here the court found that he's relationship with Children wouldn't be hampered on the facts, given the extensive contact at the mother would be setting up on allowing indoor circumstances. So you can see it's a very important case because it does emphasize the point about looking at all the factors and in particular here, what mothers motivation was for wanted to take the Children overseas. Let's now look at the position surrounding internal relocation and this is where we've got a more recent case off Rieff a child Internal relocation Cases of 2000 and 15. This was a court pure decision handed down the leading judgments handed down on sixth of August 2015 by Lord Justice Rider and what we're looking at here in the context of this case is more so when people are therefore looking to mooch order from one part of the country to another. Parents had divorced child was aged 12. Onda father applied for child arrangement, sort of took over spending time with otherwise having contact with Onda. Mother had applied for a GM child Teoh, take a child to Germany. So even though this was a case which brought into play issues of internal relocation. In fact, on the facts it was one round. It was actually one which looked more at international relocation cases. And hence why the mother. I want to take charge to Germany, not a court once again applied the pain and pain principles which remember pain in pain is guidance and very important and useful guidance. But the ultimate test, as I mentioned earlier, Section one of the Children Act, which is what is in the child's best interests now. One of the issues which at this case of Rieff did highlight was that with previous authorities it was, for example, a case of K and K Children permanent removal from the jurisdiction of 2011 Court appeal case on day. One of the key messages that was being conveyed from these cases was that when you're looking at decisions as to whether or not Children should be allowed to be removed from the jurisdiction or not, or the factors in accordance with the welfare permanent inside, tests need to be considered on. No factor is more important than the other. It's a question of Wayne, them all up appropriately. Onda difference fires, pain and pain is concerned. This is, of course, guidance but department consideration. And therefore Section one subsection One of the Children Act is what's relevant on the fact Andi. One of the things the court did saying Rieff, was that one has to consider the ballast balance sheet approach. A paragraph 52 of this case of Rieff, for example, or just as my father said, that one needs to therefore almost start with a clean slate and therefore have a balance sheet whereby day effectively set off the reasons for and against child being allowed to be removed from the jurisdiction on this couldn't be very useful, insofar as helping the court to decide whether or not to allow the application not destined. Start looking at somebody other issues surrounding removal, and this is where I wanted to cover the situations running leave to remove Andi, particularly for the low risk off the child. Non return on also the use of mirror orders in particular. So this was emphasized in the case of C. W. A child. This was a at 2015 case and that this involved a case whereby the child was 10 years of age. A child had both British on the United States passport. Her child had in fact been born in the United States. The child's father was British Mother was formally Caribbean on the parents have now, in fact, that separated now, shortly after the father mother had moved to England from the U. S. Mother remained in the U. S. And then that's where she brought proceedings under the Hague convention. Father later sought and obtained a child arrangements order specifying living with Onda. Mother got contacts, but was mother who later applied for contact to take place in the US on. But this is where Father was concerned that if mother was allowed to take the child to us for contact that she may not bring the child back. Mothered was suggesting a number of protective safeguards, such as registering English order in the US, for example on depositing the child's passport. What the case really turned on was this. What is the use off member orders and how effective our thing these circumstances will. The Court of Appeal did say that the safeguards would be such that to safeguards which we're going to be put into place here, present a result in there for Low Vista. Child off not being returned in the circumstances at the court said that if a mirror order is obtained under fax here from the Florida court before the child went to the U. S. Than the father would not be dependent entirely upon his remedy under the Hague convention. Instead, he'll also have his remedy available for enforcement by the Florida court of its home order. On this protection would differ. Reduce the risk off that mother been. Yep, to remove the Charter of third country so you can see mirror orders under facts and depending upon which country it is that the person wishes to take the child to, could be particularly helpful to release the risk off the child not being returned in these types of situations. Now, one of the issues which we need to bear in mind is this balancing exercise, and this is what a case of reedy a child this 2015 case is. Fay, helpful at Child was three years of age at pence, lived in his veil and later moved to England on apparent separated and Mother moved to Israel without the father's consent sort of proceedings brought by both mother and father in this Vale and also England, respectively. The orders were made for the mother to return the child to England, but she refused on defects. Was such that depends have bean untruthful us information that in fact, also provided immigration authorities. Now, this is where the court did apply the case of re after mentioned the International Relocation case of 2015 when it looked at effectually doing a balance sheet approach and looking at all the realistic options on a decision was made. Asked replacement with a Muslim Israel under facts that the court said that they must carry out effectively a global holistic welfare valuation, teach off these proposals and to carry out proportionality. So concedes a very useful case because it very much emphasizes the use on the application of the Rieff International removal case. Insofar as the the balance sheet approach that I've been mentioning, we'll stand a position with internal relocations, as I mentioned earlier. Sometimes you may have cases whereby Children are located and living in one part of country, and then said apparent wishes to relocate the child to another part of the country. Well, this gets re see internal relocation of 2015. Is that particularly helpful in that regard? So this is where the charter mother lived in London on. But Mother wanted to seek permission to buy a specific issue order for permission to relocate the charter. Cumbria on diff, of course, deal within the jurisdiction of England Wells. The application was allowed, but that's what elected a father appealing on the court took the up change to court appeal took actually to provide us for them. A number of key guidance points about the position with internal relocation and really wonder questions was was whether or not there was any change, any difference in the law on the application of law when it comes to internal relocation that's supposed to external relocations at the court, I took to be that it's not a rule. That internal move can only be prevented in exceptional circumstances on the fact of course, said that to test his famous Studi welfare test under Section One off the Children Act. So the court set out a number of issues in these types of circumstances. Firstly, the court said that there was no difference in basic in the basic approach between external relocation and internal relocation of decision hinged ultimately on what was in the worth of a child in what was seen to be in the child's best interests. Secondly, to wish his feelings and interests of apparent parties and the impact of decision on each of them was great important looking at what was in accordance with a chance. Welfare under court also said that in relocation cases, whether it's internal or external, the judge would find it helpful to have regard to guide instead of pain and pain case of 2011. But of course that isn't a prescriptive blueprint, but instead a checklist of the type of factors and matters which the court need to consider in weighing up whether to allow the application or not. Now what I want to finish off with today's I want to spend a little time with you looking at the position with use a warship and when it comes to remove all cases and two cases here really wanted to discuss with you. Firstly, just the case of Ri Beatus 2015 quarter appeal case on. Don't look at the other three b 6 2016 case. So when the 2015 we be case, this is one with a mother. After two Children was permitted to relocate the United Arab Emirates, Onda father living here in England was still having contact that a pencil. Unmarried. The contact arrangements would not be enforceable in the united Abbott M bits on. But this is where the court, instead sought for the mother to given to take us to court about the contact on the court also made the Children wards of court in the hope that this would carry more weight with more enforceable. And that's what led to the appeal, not a court took the view. The court pier took the view that to use aboard ship does not enhance the court power of enforcement, and it should in fact be used with caution. Child needs clarity. A child needs stability in that regard on DAB. The problem with warship is charged and continues to be really under the guys off the court in the circumstances which can lead to ambiguity particularly, but you're not going to be leaving the jurisdiction, so instead of course, had a typical case involving relocation to a European country. One should normally just simply rely upon a Section eight application for specific issue, which should suffice. Being relocation to a non convention state warship was not necessary in most cases on the court took the view that the court could in fact deal with the facts of this case on the basis of making a Section eight order. So again there has been limited use a warship in these types of cases. Similarly, with the other case of re be the 2016 case involving a seven year old. The mother, here after child on her former same sex partner, lived in England at the Court of Appeal That found that when the mother then left the country with the child and mothers, former partner wanted the child to be returned and certainly the former partner wanted to be involved in the child's welfare. The court decided that did not have jurisdiction to hear the case and that there would only used inherent jurisdiction in exceptional circumstances On that, the court said on the facts of this case that took the use of inherent jurisdiction ever has to be constrained as limited Thean Hamid Jurisdiction Region High Court is limited to Children in cases where it was used mainly in an age with civic ALS. Have no statutory family jurisdiction on the Children of a maid. Water quartered inherent jurisdiction even if they are outside of jurisdiction in the circumstances. But on the facts here, the court said that here there was no statue basis for them. Hamad juristic should be used to order the return of the child. It was argued that in how jurisdiction order has been made in other cases as such as abduction cases, for example, but here on the fact that the court said that it is discretionary and it wouldn't necessarily be used on the certainly wasn't required on the facts of this case has it stood so you can see just to summarize when we're looking at relocation? Very important, bearing in mind that the principal very much is set out within Section one of ritual connect the pain and pain cases very useful. Insofar seven at the practicalities, there's a later cases of re doubly, for example, mentioned. Sometimes mirror orders could be useful to provide that extra layoff protection. Onda There is off course the case of Reese E, which makes the point that there is no obvious distinction between the criteria for both internal and external relocation. Thank you very much for listening. I hope that's been useful or not speaking Next time. Thanks very much. Bye for now.