Reforming Relocation Law: An Evidence‐Based Approach

• Author: Judy Cashmore,Patrick Parkinson
• Date: 01 January 2015
• DOI: http://doi.org/10.1111/fcre.12128
• Published date: 01 January 2015

SPECIAL FEATURE: REIGNITING THE RELOCATION DEBATE

REFORMING RELOCATION LAW: AN EVIDENCE-BASED APPROACH*

Patrick Parkinson and Judy Cashmore

In recent years, there has been much discussion within international fora about the need for a greater consensus on how to

approach relocation cases. Empirical research on the lived experience of parents and children whohave been through relocation

disputes has an important role to play in providing an evidence base for decisions on policy. In this article, we summarize the

findings of a 5-year prospective longitudinal study of relocation disputes in Australia and make recommendations in the light

of this and other research evidence concerning a new approach to relocation law. Weargue that there should be no presumptions.

Nonetheless there is an appropriate place for legislative or appellate guidance on howto approach these disputes. “Good faith”

should be irrelevant to decision making, and children should not be placed in the center of the conflict. The adjudication of

relocation disputes should be on the basis of asking three questions: First, how close is the relationship betweenthe nonresident

parent and the child and how important is that relationship developmentally to the child? Second, if the relocation is to be

permitted, howviable are the proposals for contact with the nonresident parent? Third, if the relationship between the child and

the nonresident parent is developmentally important to the child and is likely to be diminished if the moveis allowed, then (a)

what are the viable alternatives to the parents livinga long distance apar t? and (b) is a movewith the primary caregiver the least

detrimental alternative?

Key Points for the Family Court Community:

• Describes the findings of empirical research on relocation disputes in Australia on the lived experienceof children and

families postrelocation disputes.

• Reviews various features of relocation law and proposals for reform in the light of this research evidence.

• Proposes an approach to deciding relocation cases based upon three essential questions.

Keywords: Children;Custody;Family Law Policy and Decision Making;Moving Away Mobility;Parenting Arrangements;

and Relocation

INTRODUCTION

In the last few years, significant efforts have been made across the English-speaking world in

particular, to develop a greater consensus around the issue of parental relocation with children when

the parents do not live together (Carmody, 2007; George, 2012). The need arises because of the great

array of different approaches between countries, even when ostensibly the best interests of the child

are the paramount consideration (George, 2014).

There is even divergence about what a relocation case is. In England andWales, the main focus of

discussion about relocation is about “leave to remove”—that is, international relocation.There is not

a body of law which supports prohibitions on relocation that is internal to the country, although there

are some indications of change (George, 2011). To a resident of Australia, Canada or the United

States, a differentiation between national and international relocation in terms similar to England and

Wales might seem logically unsustainable. In these countries, even non-stop travel from one side of

the country to the other takes many hours by plane. A resident of Washington State who relocates

across the border to Vancouver will still be much closer to the place of origin than one who moves to

New York or Florida. Domestic relocations can effectively terminate face to face contact between

parents and children if neither parent has the resources to afford such transcontinental travel. Inter-

national relocations may certainly involveparticular difficulties that are not present in domestic moves

(Warshak 2013) but this cannot justify an entirely different body of law applying to each.

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© 2015 Association of Familyand Conciliation Cour ts

Arguably any proposed move of a substantial distance, which makes it significantly harder for a

nonresident parent to spend time with, and to be involved in, the life of his or her child, taking into

account the financial circumstances of the parents and the practical difficulties of travel, should be

characterized as a proposed relocation. We emphasize the expense and difficulty of travel because to

assess the impact on contact arrangements, it is not enough to know how far it is from point A to point

B; it is also necessary to know how much time it takes (particularly for people reliant on public

transport) and how expensive it is given the circumstances of the parties.

The issue of relocation is inherently and inevitably gendered, because, for the most part, it is

mothers who are primary caregivers and want to move together with their children. Most will not

move unless they can take their children with them (Behrens, 1997; Young, 2011). There are human

rights issues involved concerning freedom of movement which impact more upon primary care-

givers than nonresident parents (Lamont, 2012; Parkinson, 2008b; Young, 2011). Realistically, little

can be done to require nonresident parents to stay in close proximity to their children, since court

orders cannot require a parent to spend time with his or her children in a way that benefits them

(Parkinson, 2008b). Both mothers and fathers are free to move without their children, and the

jurisdiction of courts in relocation cases is ordinarily limited to making decisions about parenting

arrangements.

The international efforts to develop more consensus in this area have mainly occurred

through discussions among senior judges of different jurisdictions. The International Judicial

Conference on Cross-Border Family Relocation which was held in Washington, DC, in March 2010

produced a Declaration concerning the factors that ought to be taken into account in inter-

national relocation cases (Washington Declaration, 2010). Relocation was a major focus of the

International Family Justice Judicial Conference, held in Hong Kong in August 2012. There was

also extensive discussion of the issue at the Sixth Special Commission at the Hague on the Practical

Operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention in

January 2012.

However, there are limits to what can be achieved by negotiation and compromise between

different jurisdictional approaches and individual judicial perspectives. One of the organizers of

the Washington Conference, Lord Justice Thorpe, has written that the “diversity of the approaches

of the many jurisdictions represented resulted in a list of factors which, to be of much utility,

would have required a great deal of refinement and distillation” (Thorpe, 2014, p. v). There are also

limits to what consensus can be achieved by a dialogue on this issue between academic lawyers

and judges. It is critical to the development of sound policy that the law on relocation is also

informed by the wisdom of experts in child development and on children’s adjustment to parental

separation.

In recognition of this, the International Family Justice Judicial Conference, held in Hong Kong in

August 2012, passed the following resolution (Diamond, 2013):

The participants of this meeting see every merit in moving to a more certain system in order to resolve

international family relocation disputes. The form of that system should now be given consideration. . . .

the conclusions of specialist academics in the field regarding guidelines, resolutions or presumptions for

international family relocation are noted by the meeting. Future inter-disciplinary work in this field is

encouraged.

In similar vein, the Sixth World Congress on Family Law and Children’s Rights (World Congress,

2013) resolved that

the international family law community should be encouraged to develop child relocation guidelines to

achieve, wherever possible, consistency of approach between jurisdictions in collaboration with judicial

and legal representatives, academics, social scientists and other interested stakeholders.

The recognition of the importance of interdisciplinary work and the contribution of the social

sciences to the discussion of public policy on relocation is welcome. Much has been written in this

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