International relocation of a child – a primary carer’s prerogative?

Year Published: 2012

In a recent case a mother was successful in her application to take her child, ‘J’ aged 6, to live with her in Tanzania on a permanent basis despite a recommendation to the court from CAFCASS (a body that looks after the interests of children involved in family proceedings) that the child should not be removed from the jurisdiction.

The child’s parents were born and raised in Africa and came to the UK separately. They met in England and a year later their child was born however their relationship soon deteriorated and they both formed new relationships shortly after separation.

The father had two children with another lady and his proposal was that J would live with himself and his new family in Council accommodation in the UK.

The mother was now married to a man who lived in Tanzania and was also pregnant with her husbands baby. Her new husband was a successful businessman and when he gave evidence in court the Judge found him to be an impressive witness.

The Judge was satisfied that the husband could not leave Tanzania to live in England due to his personal circumstances. The mother proposed a shared residence arrangement with J travelling to England twice a year spending 6 weeks with the father every summer and 3 weeks every Christmas in addition to regular indirect contact.

The Cafcass officer recommended that J was not removed from the jurisdiction however admitted in her oral evidence that she had never previously dealt with such an application and her opinion was a “very fine” one.

The Judge believed it was not realistic to propose that now or in the foreseeable future, J should make her primary home with anyone other than her mother.

The Judge ruled that J’s lifestyle and upbringing in Tanzania would be equal to, if not better, than if she remained in England. The Judge believed J’s need for a prosperous relationship with her father could be met by the shared residence. Furthermore, he added that although J’s wishes and feelings may favour remaining in England they were not decisive and consideration was given to her tender age.

The Judge provided a clear view that it was in the overall best interests of J to allow the mother’s application. In relation to the Judge departing from the opinion of the Cafcass officer, he pointed to the fact he had met and heard from the mother’s husband (unlike the Cafcass officer). He also had established that J could visit England for significant periods (not once a year as the Cafcass officer had thought). The Judge stated he could not regard the wishes and feelings of J, which were expressed on one occasion only to the Cafcass officer, as holding such weight as the Cafcass officer believed they should.

This case further highlights the difficulty that a non resident parent faces when the resident parent wishes to relocate to another country. The case law seems to favour the primary carer’s position with the presumption that the child would be more distressed at being separated from the primary carer than leaving the country they are accustomed to.

For further information on family law matters, please contact Shelley Chesworth in the Private Client team on 0161 475 7682.

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