Landmark Court of Appeal decision
With an increasingly smaller world, increased movement of people and ability to “connect” with people all over the world on the net, marriages between people from different countries have become increasingly common. This, in turn, can create major issues on divorce where there are children involved.
Before a landmark decision in the Court of Appeal, the majority of cases where a spouse, often the mother, wants to move back to their country of origin with the children, involve this happening. The court always has to put the needs of children first but the way in which the issue has been dealt with, weighing heavily the emotional impact on the primary care giving spouse of being forced to stay in England & Wales, usually has resulted in an Order that the spouse can leave the country with the children.
In the relevant case, the father was found by the court to play a major role in the children’s lives, who had been living with him for 2 nights each week during an extended separation period. The Court effectively changed the principle away from giving heavy emphasis to the effect on the spouse forced to stay in this country to a greater emphasis on the likely detrimental impact on the children on being so far away from the spouse remaining in England & Wales.
This raises many possibilities and issues for the estimated 1,000 cases a year where this issue arises, including :-
- Will mother’s look to divorce without a period of separation i.e on other grounds for divorce, so as to avoid evidence being available of the father spending considerable time with the children pending divorce ?
- Will this new emphasis result in father’s objecting to children moving abroad out of spite ?
- Will mothers abscond with their children ?
It is worth re-emphasising that whilst this is an important precedent and clear shift in emphasis, each case is different and the courts will always weigh up all factors in these cases, but always putting the needs of children first.
Many thanks to Alicia Cenizo, family law and divorce partner at Darlingtons solicitors, for this article.