– Journal of Family Law and Practice • Vol. 1.1 • May 2010 • page 23 – Introduction Relocation - the decision to allow one parent to move permanently to another jurisdiction with the children of the relationship - is a subject fraught with difficulty. For parents who can reach agreement privately on this course of action, this decision has very serious consequences for them and their children. For those who have previously contested divorce proceedings, including residence and contact matters, however, an application to relocate may re-open old wounds, requiring a fresh consideration of issues that were highly contentious the first time. 1 In these circumstances, parents who were unable to agree on where the child should live, and what contact the non-resident parent should have post- divorce, will not find it easy to reach agreement on the arguably bigger question of relocation. Chris Barton has noted that in these circumstances the ‘protagonists may attribute antagonistic motives to one another’. 2 But, it is also the case that rather than being unreasonable, parents seeking to relocate (or opposing that decision) are frequently motivated by justifiable and genuinely child-focused reasons, as much as by their own desires. From a neutral position, then, such proceedings may ‘pit a custodial parent’s reasonable wish to better her circumstances by moving against a noncustodial parent’s reasonable desire to maintain the frequent contact with his minor child that is a normal and perhaps essential element of any parental relationship.’ 3 This is the nub of the relocation dilemma, especially where both parents are fully involved in their children’s lives and are competent carers. 4 But, in many cases, there is conflict and relocation presents as an unresolvable dilemma. The mother (it is frequently the mother) feels she is being forced to live in one country against her will, and the father believes his relationship with his child(ren) will be threatened, if not destroyed, if she leaves. The parent who wants to leave may want to start afresh away from a former partner, whereas the latter may see the issue as a forfeiture of ‘such vestiges of their parenthood as have survived divorce or separation’. 5 The application to remove the children to another jurisdiction is often accompanied by factors associated with (just) one parent’s happiness and lifestyle, such as a new partner, a move closer to friends or a return home to extended family and other supports. In such cases, it is perhaps easy to say that the welfare of the mother, as the child’s primary carer, is inextricably linked to that of her children. 6 The benefits that the move might bring - greater stability or emotional and financial security perhaps – could be said to outweigh the risk to the father’s relationship with his children, especially given that modern technology makes travel and communication easy and cheap. Some have criticised this approach which appears based on generalisations about what is in the child’s interests, or indeed assumptions that was is best for the mother is best for the child, and alternative approaches have been proposed. 7 These approaches have significant merit, but Relocation: A Children’s Rights Perspective Dr. Ursula Kilkelly* * Dr Ursula Kilkelly, Senior Lecturer, Faculty of Law, University College Cork. With thanks to Marilyn Freeman and Frances Burton and to the anonymous reviewers for their comments. Responsibility for all remaining errors is mine. 1 See S. Gilmore, ‘Disputing Contact; challenging some assumptions’ [2008] 20(3) CFLQ 285. 2 See C. Barton, ‘Case Commentary: When did you next see your Father? Emigration and the one-parent family?’ [1997] CFLQ 73, at p. 78. 3 S.L. Braver, I.M. Ellman and W.V. Fabricius, ‘Relocation of Children after Divorce and Children’s Best Interests: New Evidence and Legal Considerations’ (2003) Vol 17(2) Journal of Family Psychology 206-219, at p. 206. 4 For an overview of the issues see M. Freeman, Relocation. The Reunite Research. Funded by the Ministry of Justice. July 2009, available at www.reunite.org (11 January 2010). 5 C. Barton (1998), at p. 78. 6 Payne v Payne [2001] 1 WLR 1826; [2001] EWCA 166. For a recent Irish case loosely based on these principles (although informed by the Irish constitutional position) see B v O’R [2009] IEHC 247. 7 See Hayes, M. ‘Relocation Cases: is the Court of Appeal applying the correct principles? [2006] 18(3) CFLQ 351 and J. Herring and R. Taylor, ‘Relocating Relocation’ [2006] 18(4) CFLQ 517.