International Relocation – Wishes and Feelings of the Child

As we live in an increasingly internationally mobile society, family law practitioners are often consulted on the delicate issue of the international relocation of children. Where a child is habitually resident in England and Wales, if one parent with parental responsibility for a child wishes to remove a child from the jurisdiction they will need the consent of anyone else with parental responsibility. Where the move is permanent, it will be necessary to make an application to the court for ‘leave to remove’ the child.

The other aspect of international relocation concerns circumstances where one parent removes a child without permission. This could amount to international child abduction and, depending on the country to which the child is taken, may be subject to the international laws (known as the Hague Convention) relating to the return of the child.

In both leave to remove cases and applications to return a child to his or her ‘home’ country after an abduction, the Court will consider various factors in determining whether a relocation or return will be in a child’s best interests. The Court’s “paramount consideration” in every case is the welfare of the child. This involves consideration of the overall circumstances in the case, and the wishes and the feelings of the child are just one element that will be taken into account.

There is no specific guidance on the age at which a child can be asked about his or her views, and the Court will need to consider the child’s wishes in light of each child’s age and understanding. Generally speaking, the older the child the more weight their views will be given, but it will depend on the individual child in every case. Parents also need to bear in mind that courts in different countries take different approaches to assessing the wishes and feelings of children, and in some countries even very young children can be interviewed as part of the court process.

The Court will weigh up the child’s desires against their physical, emotional educational needs in both the child’s home country and the country of the proposed relocation. It will also need to consider the capability of each parent to care for the child and the impact on the child of the relocation. It is always a case of the Court having discretion based on the overall circumstances of the case.

The result is that even in cases involving older children able to express their views, the Court may grant leave or order a return if this is expressly against the child’s wishes if the other circumstances support it. As an example, a recent High Court case involving a 15 year old child who was abducted from Mexico to England resulted in a return being ordered despite the child’s wish to remain in England because of better education prospects. The child had intended to live with her father in England, but a family dispute meant that the child was evicted from the father’s home. Although the Court found that the child was clearly of an age and maturity where her views should be considered, the Court found that without a stable home the child’s ability to seek a good education in England was severely compromised, and accordingly a return to Mexico would be in her best interests.

There is no doubt that cases of international child abduction and leave to remove applications are extremely sensitive and need careful and experienced handling by a specialist practitioner. It is essential that any parent considering an application to move a child across international borders does so in the knowledge of the correct law and procedure, and with the understanding of all the aspects and details which will need to be carefully considered. In cases where a child is sufficiently mature to provide a Court with clear reasons for their wishes and feelings, parents need to take advice on how the child’s views can best be presented to the Court. In some cases this will involve the child having independent legal representation, and this is something which should be discussed with legal advisers at the outset.

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