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Where do children live when international relationships breakdown?

An article by Richard Gregorian, principal of Gregorian Emerson Family Law Solicitors (www.gelaw.co.uk) and Gavin Emerson, Brief Strategic Therapist.

The globalisation of personal failure, in the form of broken marriages and relationships, can be traced into the subsequent applications of primary carers (usually, mothers) to permanently emigrate with their children against the wishes of the non-resident parent (usually, fathers) after the relationship has broken down. For this reason, applications involving Eastern European countries have become increasingly common in recent years.

However, these international relocation applications (otherwise called "leave to remove" cases) have occurred for many decades and for obvious reasons have very frequently involved applications to relocate with the children to English speaking countries on the other side of the planet.

The question of where the children would live and with which parent following separation should be a pre-international marital/relationship consideration for both parents, but for understandable reasons, it is not. However, the glamour of marrying a foreigner which may also have benefits for the children (such as dual citizenship), can result in the biggest nightmare that any parent will ever experience. An application by a primary carer following divorce or relationship breakdown can trigger a financial, professional, emotional and psychological implosion for the parent "left behind". The loss of contact with their child will be the closest that parent comes to having their child taken into care or being adopted. For professional parents, who have never been exposed to public interference in their private lives, such a breach of their right to family life may have unbearable consequences.

Once the child has relocated, the laws of this land are rendered impotent. Further, if so minded, the emigrating parent may claim a change in circumstances in order to vary the contact regime ordered by the English court prior to the permanent emigration. The left behind parent is effectively at the mercy of the emigrating parent (who by bringing the application may have already evidenced their parenting priorities) to continue their already restricted relationship with their child.

We still live in a society where, statistically, mothers are the primary carers of children both prior to and following relationship breakdown and the father is the full-time worker. These labels can have dramatic consequences for the non-resident parent upon relationship breakdown since the family courts in this country put great store by the wishes of the primary carer to emigrate with the children. Their wish may be motivated by a need for family support, career requirements or the pursuit of another relationship in their home or, indeed, a third country or simply a lifestyle choice in wishing to leave these shores for greener grass. Marriages and relationships between two "native" parents are not immune from such applications - the only prerequisite is the primary carer wishing to emigrate with the children in the face of the understandable opposition of the other.

The family court favours such applications on the basis that, so the theory goes, if the primary carer is not permitted to emigrate, they will be so distressed that it will negatively impact their parenting. Critics of this proposition argue that the focus on the primary carer’s emotional and psychological well-being should be of secondary importance to what is in the best interests of the child - having frequent contact with both parents.

My personal view of how these cases should be handled is:

1. As with all children disputes, running a case on its facts alone simply leads to a series of uncorroborated allegations, denials and counter allegations by each parent. Nothing is ever achieved by doing so as the judge retreats to the certainty of precedent.

2. Rather, a holistic case building strategy based on the psychology of the case, the individuals and their decision making, not only maximises the prospect of a successful outcome for the parent, but in conveying their genuine concerns is a far more child centric approach than relying upon the usual stereotypes and labels so frequently encountered in such cases.

3. For the parent objecting to the application to relocate (usually, the father) to produce volumes of academic and psychological research in support of the proposition that two parents are better than one simply confirms what the judge already knows and meets head-on the insoluble battle with the equally meritorious proposition that an unhappy primary carer is not a good thing for the child. The courts deal with this tension on a domestic basis every day and already accept that compromise.

4. Any legal adviser should be able to communicate to you a clearly defined strategy and understanding of how to build your case around that strategy whichever parent they are acting for. Beware lawyers who do not have such a strategy or who offer percentage chances of success (or failure) at the first meeting before they fully understand the case and how to improve it; if they cannot increase the chances of a successful outcome for the client it cannot be said that they are adding value.

Richard Gregorian is the principal of Gregorian Emerson Family Law Solicitors with great expertise in international relocation (or "leave to remove") cases to which he applies a joint legal-psychological approach as with all cases involving children.

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