These days, marriage often results in the migration of one spouse from his or her home country to the home country of the other spouse. The foreigner, yearning for home, sometimes feels unsettled in the new home, but remains willing to make the sacrifice for the sake of the entire family unit. However, if the marriage hits a rough patch, the desire to be closer to family and familiar sources of comfort and support often drives the need for the migrant spouse to relocate to home.
The situation has little complication if there are no children involved; but with each party wanting to maintain close access to the children, seemingly unending legal battles, including applications for relocation orders and injunctions to prevent child abduction, can become the order of the day. For this article, we will focus on applications for relocation and the factors the court should take into account.
The emerging consensus from the several cases I have read on the topic appears to be that each case is to be determined on its own facts and that there is no closed list of factors which need to be taken into account when determining the issue. However, for several years, the accepted approach which came from the case of Payne v Payne, was to make an order in favour of the parent who is the primary provider, unless there is some evidence that such an order would be incompatible with the child's welfare. Therefore, if the parent who wanted to relocate was the primary care provider, it was likely that the order would be granted if the following four grounds were favoured the applicant:
The application was genuine.
Whether the opposition to the move was motivated by genuine concern for the children.
With emphasis on the emotional and psychological well-being of the primary provider, what the impact of refusing the application would be.
Consider all the factors as part of an overall review of the welfare of the child.
A 2011 decision from the English Court of Appeal put the spotlight on the decision in Payne v Payne, and confirmed that it does not provide the solution in all cases, because there are situations in which there may be no primary provider. That is to say, some parents share the responsibility for providing care for the children, so that there will be no greater detriment suffered by the relocating parent than the one who is to be left behind.
In the final analysis, the court concluded that the court's primary role is to determine what order will be in the best interest of the child; and this is to be done on a case-by-case basis. In other words, although other cases may provide useful guidance to the court, there will be no overwhelming presumption that the outcome should favour the parent who is the primary provider.