A day does not seem to pass at the moment without some celebrity divorce or other hitting the headlines (now better known as “conscious uncouplings”). The trauma which this causes to children normally remains in the shadows of the associated gossip, glitz and glamour. In reality, separation and divorce are painful, particularly for children. What happens to them when their parents separate?
In the last 20 years or so, the trend has been for children to share their time more equally between both parents, moving from one household to the other. English law works on the basic principle that it is usually best for a child’s welfare if both parents continue to be involved in their child’s upbringing and daily life. On divorce, no court order about shared care is needed unless there is a problem. For some years now, the family courts have instead promoted the use of mediation wherever possible, so that parents can (with the skilled assistance of a neutral intermediary) sort out arrangements for children without the involvement of lawyers. This is often the best process for all concerned.
But what happens when one parent wants to move to a different country, taking the child with him or her? The English courts insist that, in deciding any question over the future home of a child, the paramount principle is the child’s welfare. In practice, English law has in the past often favoured the mother who wanted to relocate with the children, perhaps because they have had their main home with her. Fathers were often left behind. For separated parents, it could be expensive in those circumstances to spend much time with their children, particularly, if the father did not have any connection with the mother’s home country, and had to incur travel and hotel expenses. Even with Skype, WhatsApp and other new media, it is hard for children to stay in close and meaningful contact with an absent parent.
In August 2015, the Court of Appeal had the opportunity to look again at this problem, and restated the central importance of the welfare of the child. The judges refused permission for a mother (whose marriage had broken down) to return home to Germany with her 12 year old daughter. The child would have inevitably lost her close relationship with her father, because of geography, even with generous holiday arrangements. The court ruled that earlier case law, which often favoured mothers, was no longer to be followed because it was often guilty of “gender bias”. In future, courts must decide applications for permission to relocate a child to another country by balancing the mother’s and the father’s plans, looking at the reasons for relocation, and at the impact on the child of any change of home.
Each case of course has its own individual circumstances but anyone thinking of relocating, or worried that this might happen on divorce, must make careful plans for any child to be able to keep in close contact with the other parent, in addition to other appropriate arrangements for the child’s upbringing.
I am grateful to my fellow partner, family law specialist and up-and-coming TV celebrity lawyer Hazel Wright for her help with this article.
This article was originally published in Discover Germany and can be found here.
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