The coronavirus pandemic has affected daily life for us all. At the time of writing the UK Government has just announced a three week extension of the lockdown and news reports abound that there will be "significant" social distancing until there is a vaccine which, even with sustained global efforts, is unlikely to be before the end of 2021.
Times of crisis bring out the best and the worst in us. Family relationships are no exception. Some will feel unified but, for others, the prevailing uncertainty will mean separating and separated families are under increased strain, particularly when dealing with arrangements for their children.
For many the current crisis is a wake-up call: people are taking stock. Priorities and plans are changing for "when this is all over". Thoughts turn to what that "new" future may look like, where it will be and with whom.
For international separating families there has always been the potential additional issue of one parent wishing to relocate with the children overseas when the other does not. Is living through a global pandemic going to focus minds and cause international parents to actively consider (or indeed, reconsider) a relocation overseas?
You may be a parent wanting to return to your native home or join a new partner. The enforced separation from loved ones may make you want to bring this forward. You may feel that your native country is a safer environment in which to bring up children. There may be better health provisions to respond to the present outbreak and also better measures in place (such as testing and tracing) to contain or respond to a potential future "second wave". You may find yourself faced with having to consider a new job opportunity overseas in order to remain in employment amidst the economic fallout.
Alternatively, it may be your ex-partner who wants to make the move, but you do not think this is best for your children. You may worry that the bond and relationship you have with them will be forever changed, if not broken, particularly with the present and foreseeably enduring restrictions on movement in place.
At the best of times these are difficult and emotionally charged cases by their nature. There is usually a stark binary outcome: one parent goes with the child, the other stays behind.
The current legislation
The law says that if a parent wishes to move abroad with their child, then the other parent must agree to the relocation, failing which the court's permission must be sought. In reaching a decision, the court must ask itself if the proposed relocation would be in the best interests of the child (the welfare of the child being the court's 'paramount consideration').
In practice, this is a delicate balancing exercise, a holistic approach, looking at and exploring all the competing options and alternatives presented. This needs to be based on thorough research involving all aspects of a child's upbringing. The court will usually scrutinise the motives of both parents in making (or opposing) the application, as well as the impact on both parents of the application being granted (or denied). But the child's welfare is always the determining factor.
This balancing exercise is going to become even more delicate now as fundamentally no one can say with any degree of certainty "when this will be over". The goal posts will move inevitably for the foreseeable future as countries constantly re-assess their lockdown policies and more importantly start to devise their lockdown exit strategies. At the time of writing we are already seeing differing approaches emerge in the US (even from state to state) and in mainland Europe between countries. There is unlikely to be global consistency.
Some observations on the impact of Covid-19 on relocation applications
The global reach of Covid-19 and current self-isolation guidelines inevitably bring new challenges for those parents wishing to persuade a court that relocation is in their child's best interests.
Applicants will be expected to set out the situation on the ground in the proposed destination country as well as present a clear plan for the consequential safeguards for the child. This is going to need considerable research and probably expert medical opinion from the destination country. If the destination country is significantly adversely affected by the pandemic and the "curve is not flattening or has not flattened", the court is likely to take this into account.
In some cases, it may be advisable to delay making the application or adjourn an existing application until conditions improve or there is some degree of certainty as to the trajectory of the disease in the destination country and a lockdown exit strategy has been formulated. A key turning point is likely to be knowing when the national schools in the destination country may re-open and in what circumstances, and what the proposed accompanying health safeguards will be.
In normal circumstances, the court expects the parent wishing to relocate to propose how contact between the child and the remaining parent should be promoted if the application were granted. This is usually the cornerstone of any application. Success often depends on realistic and workable proposals for continuing, meaningful and regular contact with the left-behind parent. This typically involves a combination of direct (physical time spent) and indirect (e.g. Skype, FaceTime, Zoom) contact. Indirect contact (perhaps these days better described as remote contact) is more manageable than ever. The remote world has enabled us to comply with our present obligations to socially distance but it cannot be said that this is in the best interests of a child to "socially distance" from their parent left behind in this way for an indefinite period of time.
Remote contact can be no substitute for spending time with the other parent and this is going to necessitate international travel. At the time of writing, the UK Government has an exceptional travel advisory in place against all but essential international travel. Whilst it is accepted that what is 'essential' will differ for each person, travelers will nevertheless be faced with other complications. Most countries having closed their borders or implemented mandatory quarantines on arrival, for example. Whichever way you look at it, it’s a de facto international travel ban.
Even when the international travel ban is lifted, travel is likely to be more complicated and more expensive. Airlines are already planning to "de-intensify" aircraft by reducing passenger numbers to reduce cross contamination but there is already speculation that airfares will go up by 50% as a result. There may be fewer routes or less frequency on existing routes. Health checks at borders may become the norm and many countries may expect the production of a Covid-19 testing certificate and, in due course, a vaccination record before allowing entry. Clearly, whether it is safe or advisable to travel will need to be considered on a case by case basis but parents will need to show that the means of transport is as safe as possible and that they have taken all possible precautions in line with prevailing health advice.
Against this backdrop, applicants' proposals for direct and indirect contact will need to be creative, flexible and sufficiently robust and involve short-term and longer-term arrangements.
What about ongoing applications?
For those already in proceedings or those wishing to press ahead with their application now, family courts are open for business albeit with some hearings taking place remotely by way of video conference or telephone call. This policy will remain whilst the Government's self-isolation restrictions remain in place. However, the suitability of remote final hearings in highly contested hearings when considerable oral evidence is needed from experts or parents is being reviewed. It is likely that where possible these will be adjourned rather than held remotely but a consultation process is presently underway concluding on 30 April. For now, it is being acknowledged that despite best efforts from HMCTS, it is not quite business as usual in the courts.
Arbitration
For parents hoping to avoid court altogether or indeed opt out of the court process, during the pandemic and beyond, family lawyers have welcomed the recent extension of the children arbitration scheme to include determination of applications for both temporary and permanent relocation to certain foreign jurisdictions.
Arbitration involves the parties appointing an independent, trained arbitrator who will hear both sides before ultimately making a binding decision (as a judge would). Without the constraints of court pressures and timetables, arbitration is generally a more time-efficient (and potentially cost-effective) process, affording the parties greater ownership and control. It is particularly well-suited to 'single-issue' matters; in this case, whether relocation overseas by one parent should or should not be permitted or, if agreed in principle, the viability/reasonableness of contact proposals.
During the pandemic, the bespoke and flexible nature of arbitration may be best placed to progress matters forward and provide some certainty for parents in dispute.
Moving forward
Specialist family solicitors will be able to advise you on plans to relocate overseas with your children, including making or defending an application for leave to remove. They can assist you with exploring what steps you should take now or in the future, whether that means proceeding through the traditional court process, or considering other forms of dispute resolution such as arbitration.
If you would like to speak to a member of our family team, please call 020 3826 7550 or complete our web enquiry form.