There is no specific statutory provision in Ireland governing relocation and so applications are brought under s11 of the Guardianship of Infants Act 1964. This allows for a Guardian of a child to seek Directions from the Court on any question affecting the welfare of a child and that includes the question of relocation. In recent times there has been a move towards greater emphasis on the welfare of the child in applications for relocation. Regardless of the reason for relocation, if the parties cannot agree, the Court must decide whether one parent can leave the country with the child. Such cases rarely settle as the parties tend to be at polar opposites. The reasons usually offered by the primary carer in seeking to relocate are (1) the mother wishes to return to her country of origin to avail of family support etc (2) the mother may have met a new partner living outside the country (3) better job opportunities (4) lifestyle choice.
The most recent High Court decision on this topic in Ireland is U.V –v- V.U(1). In this case MacMenamin J examined the approaches previously adopted by the Courts in Ireland and England. This case involved a Spanish mother and an Irish father. The children were aged 12 and 6 at the time of the mother’s application to relocate to Spain. MacMenamin J looked to the Constitution, legislation and caselaw in confirming that the welfare of the child is the paramount consideration. He indicated that there was no presumption in favour of either parent. He said that while much weight needed to be given to the view of the custodial parent, there was no actual presumption and that ‘the rights of all the parties must be weighed in accordance with the fact that the welfare principle is the overarching one’.
The Judge made reference to the Washington Declaration which emphasises that the child’s best interests are the paramount consideration and that relocation cases should be determined without any presumptions. In endorsing this approach the Judge is relying on the international non-binding Declaration which reflects the legal position in many other jurisdictions including New Zealand, Australia, Sweden, Canada and some US states. It was drafted at an International Conference on cross border Family Relocation in March 2010.
MacMenamin J carried out a detailed analysis of the case under a number of headings –
- The welfare of the children – The Court noted that the children were equally close to both parents and that access was unsupervised.
- Expert Evidence – The Judge referred to the fact that experts acknowledged that the boys had an equal bond with both parents but that it was his opinion that the mother’s application should not be refused.
- The Mother’s proposal – Judge MacMenamin referred to the fact that the expert had recommended that the father be involved with the children’s educational activities.
- The relationship between the Father and the Mother – The Judge found the relationship to be non-existent.
- The Father’s conduct – Judge MacMenamin referred to it as erratic and less than any mother or wife should expect. The Judge said that the father was tense and highly strung. The father was unemployed did not pay maintenance and the maintenance arrears were significant.
- The Mother’s motivation – The Judge accepted that the mother did not seek to relocate in order to alienate the children from their father. He referred to the fact that the mother said that ‘the benefits of the proposal to relocate are arguable’. The Judge accepted that the mother’s proposals were reasonable. It is thus important in any application for relocation that the applicant puts forward clear evidence as to why relocation will benefit the children.
- Stability – the Court found that the mother could sustain a stable financial position in Ireland.
- The effect of acceding to or rejecting the proposal – The Court held that the fathers fear that he would never again see the children wasn’t logical. The Judge however did note the expert’s view that as the parents had not spoken for a number of years, joint parenting would be essential for any relocation move. It therefore appears that in any relocation case it is important to show that joint parenting is possible.
- Continuing contact with the Father if relocation is granted – the Judge noted that the question of access raises real practical difficulties and that in this case the father would have significant difficulties meeting the costs of access if the children were to relocate. Thus any applicant should seek to have a financially realistic plan before the Court.
- The Children’s views – the Judge was highly critical that in a situation such as this case, where the children had no difficulty expressing themselves, that the mother did not allow them to speak. The Judge said that he did not think that any parent had the right to veto the right of the child to be heard. Therefore in any application for relocation it can be expected that the Judge will want to hear directly from the child. It is likely that this will only be done if it is deemed to be in the child’s best interest and if the child wants to do so.
- Schooling and healthcare – the Judge indicated that in this case there was no plan in place as to the education of one of the children into the future.
In considering all the above factors, the Judge went on to refuse the mother’s application to relocate. It appears that the main problem with the mother’s application was that (1) the access plan was not logistically or financially viable and so could not protect the father and child relationship and (2) that the children had been prevented from giving their views.
There is a research project underway in England and Wales spanning the years 2012-2014. This project looks at how relocation disputes are resolved in the Courts in England and Wales. The first findings were published in July 2013 (2). Of a total of 93 international relocation decisions submitted for study the following was observed –
- The applicant in 93% of the cases was the mother;
- 2/3 of the cases involved just a single child;
- The mean age of the children involved was 6yrs and 8months;
- The overall success rate in applications for international relocation cases in England and Wales in 2012 was 72%;
- Applications based on a new job offer were allowed in 92% of cases;
- Applications based on the applicant’s desire to return home were allowed in 74% of cases;
- Applications based on a lifestyle choice were allowed in 45% of cases.
In an application for relocation any plan will be subject to much scrutiny. In order to increase one’s chances of success the proposal must be realistic and must consider the quantity and more importantly, the quality of the access. If the parent being left behind has been involved in the day to day life of the child, any proposed access plan should look at how the quality of the access can be replicated in the new location. In the case of C–v-D (3) the application to relocate was refused on the basis that the relationship which was in existence between the father and the children would change significantly and that would not be in the best interests of the children.
Another factor to focus on is the age of the children. The younger the children, the harder it is for the parent who is left behind to establish or maintain a relationship with the children. In the case of McD –v- L (4) the Court expressed the view that ‘a year is a very long time in the life of a developing infant’.
Ultimately, any Court will look to what is in the best interest of the children involved and the welfare of the children. The right of the child to have access to both parents is balanced against the right of the one parent to move away and the right of the other parent to continuing access with the child. The case of K –v-K (5) found that it was in the child’s best interest to relocate even though the child had a good relationship with the father.
It is worth noting that the Judge in the above case of U.V-v-V.U has stated that Orders of this nature are interlocutory in character, so a refusal one year may not be a refusal the next. This is based on the logic that the welfare needs of the child may vary from year to year. This may provide some hope to parents who have been unsuccessful in their application.
1  IEHC 519
2 ‘International relocation in English law: Thorpe LJ’s discipline and its application’ July 2013, International Family Law, 149
3  EWHC 335
4  IESC 28
5  2WLR
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25 March 2014