Child relocation instruments

Judge Boshier calls for relocation instrument

Lawyers and the Courts should have access to a soundly research based international instrument setting out a uniform standard on what is in a child’s best interest when one parent wishes to relocate, Principal Family Court Judge Peter Boshier says.

Speaking at an International Child Abduction, Forced Marriage and Relocation Conference in London in July 2010, Judge Boshier said an instrument, similar to that used in child abduction cases that set out a uniform standard, would be helpful.

Judge Boshier said he felt it was time for judges and lawmakers to examine what social scientists are saying in regard to the important role parents play and what happens to contact arrangements should one of the parents relocate.

“While cases involving child abuse or domestic violence are always incredibly tragic, the necessary judicial outcome is often clear and legislation provides useful guidance on how to proceed,” he said.

“In contrast, relocation cases often involve two competent and committed parents, one with sound reasons for wishing to relocate, the other with equally valid reasons for resisting the application.”

The reality, coupled with the fact that the principles governing this area were judge made, often made an obvious outcome difficult to find. He often saw similar facts giving rise to quite different decisions depending on the way the Judge saw the issues and the Judge’s philosophical view on the raft of issues relocation cases threw up.

“I do not consider law that lacks clarity and evenness in its approach to be beneficial,” Judge Boshier said. “By having a variety of disparate approaches to relocation law we are doing a disservice to the families, and especially the children, at the heart of relocation applications.

“An inevitable obstacle to our attempts to develop a universal approach to relocation applications is the reality that many of the world’s countries have different views on the role of parents and the place of children within the family. Even within such common law jurisdictions as England and Wales on the one hand, and New Zealand and Australia on the other, there are some significant differences”.

In countries such as New Zealand and Australia there was no presumption in favour of the primary caregiver. The approach adopted was based solely on the best interests and welfare of the child. In England and Wales emphasis had been placed on the role of the primary caregiver and an acknowledgement that, normally, steps that would enhance that parent’s welfare would enhance the child’s welfare.

There was no international instrument governing relocation although it had been acknowledged that the 1996 convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, came close.

When it came to the wrongful abduction of children, a blueprint for an international response was now becoming increasingly accepted, but an international response for relocation was proving “somewhat more elusive,” Judge Boshier said.

“If judges have been missing the point, it might be seen that it is not altogether their fault,” he said. “This area of the law is one of the most complicated in the Family Law arena. The stakes are high and the research basis light.

“It is not surprising to me that judges have tried to do the right thing having regard to what they perceive as the correct current approach, but perhaps ended up missing the point.

“We must constantly look to see what academics and researchers are able to tell us in order to develop our thinking so as to always apply a judicial approach that best serves the interests of children.”

This article was published in LawTalk 756, 16 August 2010, page 11.