Transnational parenting is an increasing phenomenon in England and Wales which can bring a high price to either or both parents in the event of the relationship breaking down. There have been two reported leave to remove cases in February 2013 which highlight some of the thorny issues which can arise in these circumstances.

The first is S v T [2012] EWHC 4023 (Fam). The father was from England and the mother was from Russia. They married in August 2011 and had a child, M, who was born in December in the UK. The parents separated in May 2012. The father had regular visiting contact and once fortnightly staying contact. The mother applied for a residence order and permission to relocate permanently to Russia. The father applied for a prohibited steps order and an order bringing about a shared care arrangement.

The father had a number of objections to the mother’s proposals in terms of the relocation to Russia with M:

  • objections to the physical surroundings of the property in which M would live;
  • doubts as to whether there was a serious commitment to M becoming bilingual since the maternal grandparents spoke little or no English; and
  • anxieties about what he perceived to be the hostility to foreigners in the township in which the mother was living.

The court found that both parents were essentially genuine in their motivations. The mother’s primary motivation was to go home. She felt isolated and unsupported in the UK. The father’s main concern was M’s welfare and interests.The judge reviewed the authorities specific to an application for permission to relocate permanently:

  • the court must scrutinise the proposals of the applicant bearing in mind that in a going home case they might be a less arduous undertaking than if it was an entirely new venture;
  • the court must look at the motives of the applicant in making the application and, in particular, consider whether or not a significant motivation is to exclude the other parent from the life of the child; and
  • the court must consider the impact of relocation upon the left behind parent and his or her extended family.

After giving the case his “closest and most anxious attention”, the judge gave the mother permission to relocate to Russia with M. M was going to have his home essentially with the mother although time with the father and his family would undoubtedly increase and become an increasingly significant part of M’s life. The judge pointed out that when parties enter into transnational parenting then they are taken to be doing so with their eyes wide open and with an understanding that if their relationship breaks down then going home may be a major issue for one parent. Moreover, if breakdown takes place whilst the child is very young then the child is likely to follow the parent with whom he spends most of his time. Although here the mother would live in less desirable surroundings than she had done, M’s education would be attended to and she had genuine reasons and motivation to advance his capacity to understand and speak English. The judge was satisfied that, provided the arrangements for direct and indirect contact were adhered to, M would have the opportunity of developing a proper relationship with his father and one which he would share with many other separated children. Overall, the welfare of M would be promoted by the move.

The second case is Re E (Relocation: removal from jurisdiction) [2013] All ER (D) 132 (Feb). This was a Court of Appeal case where the children were aged two and five. The mother sought permission to relocate to America. She had started a relationship with an American citizen who lived there. She offered to bring the children to the UK for the three summer months of the American school holiday and alternate Christmases.

A full report was directed to be prepared by the CAFCASS officer. The officer concluded that she was unable to recommend that the mother be granted leave to remove the children from the jurisdiction.

The judge found that the mother who was the primary carer had put together solid and comprehensive relocation proposals. The mother’s ability to continue to care for the children in the way that she had hitherto would be adversely affected if she were refused permission to move. The judge granted the mother’s application on condition that she obtain a mirror order in America containing the judge’s contact regime. The father appealed.

He argued that the judge had failed to give cogent reasons for rejecting the CAFCASS officer’s recommendation. His appeal was dismissed. The Court of Appeal stated that the CAFCASS report was incomplete, one-sided and liable to be rejected by a judge who is required to look at these cases in the round. The CAFCASS officer had failed to take into account the quality of the mother’s proposals which included proposing to bring the children back to England for the three summer months of the American school holidays, supplemented by alternate Christmases and the effect upon her if the application were to be refused. The report was therefore not a fair report.