Richard Harrison QC shares his ideas on how non-court dispute resolution can be useful in international relocation cases.
As a barrister, I spend a lot of my time in court. Some of the more difficult cases I deal with are ‘leave to remove’ or ‘relocation’ cases, where one parent is seeking to take children to live abroad permanently after the breakdown of a marriage or partnership in this country. Often, the other parent resists and refuses to give consent for this to happen.
If the agreement of the other parent is not forthcoming, the parent wishing to go has to apply to the court. The legal framework for how this needs to be done is very clear, and the process is a detailed one. In many cases, the court permits the parent to go; in others, it does not. The result is often finely balanced.
Relocation cases have the reputation of being very hard to settle because is always seems that one parent has to win and one has to lose: the children either go or they stay. However, it’s not always that clear-cut. The collaborative process offers parents a real way to talk about whether there is anything that can be done to smooth the path of the parent who wishes to leave the country to make it more bearable for her (or him) to stay, whether there is any possibility that the remaining parent could also relocate and what might make it easier for him (or her) to do so, and if the relocation is to take place what the arrangements for the children to have time with both their parents should be.
Even though the interests of the parents may seem completely polarised at first glance, skilled collaborative practitioners and mediators can use parents’ shared focus on their children to facilitate discussions from which creative solutions might evolve.
The court deals with an application for relocation by deciding whether it is in the children’s best interests to go or to stay. To determine this question, considers a number of different factors. My role in the collaborative process is most often to explain what a court would do if faced with the facts and suggestions of the family in front of me. This information works as part of the process to allow the parents to consider the court’s perspective on the children’s interests and how closely it accords with what they themselves think.
I can either give a written opinion or come to a meeting to discuss how changes in the proposals made by each parent might affect what a court would do, and give my own views, if asked, on any possible compromise.
I have heard parents explain that even though they know what the outcome of an application to relocate is likely to be, they feel they have to maintain their position – either to go or to resist – for their children’s sake. It’s important to remember that children do not benefit in the long term from their parents fighting, particularly about them. It is often better to discuss matters and try to reach a consensual solution. In my opinion collaborative law is an excellent forum that can yield workable solutions both for parents and for children.