It is estimated that there are approximately 1200 cases heard by the English courts each year in which one parent wishes to emigrate outside of England and Wales with their child. That figure does not include the very significant number of cases in which the remaining parent accedes to the other parent’s wish to emigrate. Those parents who unsuccessfully defend these cases at court (75% according to the reported cases, but could be as high as 90%) face the permanent impairment or termination of their parental role.

A key consideration in many of these cases has been the “distress argument” which refers to the emotional and psychological distress the parent wishing to emigrate will inevitably feel if they are denied the chance to emigrate, and which will inevitably result in an uncontrolled impairment of their parenting skills to the disadvantage of the child (as seen in the case of Payne v Payne).

The approach by the courts in focusing on this factor is seen by many to be misguided in focusing too heavily on the parent wishing to emigrate rather than the child, and unfair if an applicant who the law treats generally as being unable to control their emotions is also treated to have the self awareness and objectivity to decide whether the proposed move is in the child’s best interests.

Recent cases have shed light on what appears to be a departure from this approach, and have reiterated that the welfare of the child is the court’s paramount consideration and it is necessary to consider the proposals of both parents in the light of the welfare of the child and having regard to the interests of the parties and, most important of all, the child.

It remains a key consideration to ensure the parent wishing to relocate has a clear and viable plan, which has the welfare of the child at its heart and that plan considers and evaluates the other parent’s role in the child’s life.

 

If you require advice or assistance in relation to any of these issues or other family law matters at Jordans Solicitors we have a dedicated family law team who can help. Please dial 01924 387 110 and ask to speak with a member of the family law team or visit our website and request a call back.


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