Resolution Driven Legal Services

Separation – Re-Locating Children

In an era where travel abroad to work has become much more prevalent, and where more and more Irish children have origins in an EU state and beyond, the issue of relocating children has become much more prevalent.

In a seminal Irish decision in 2011 Judge John McMenamin in a Judgement of UV -v- UV considered previous Irish cases as well as a very important UK case of Payne -v- Payne. In this decision he made a number of important statements;

1. He rejected any suggestions that there is a presumption in any decision as to whether a child should relocate in favour of the custodial parent.

2. He said that the balancing exercise which must have regard to the constitutional rights of children in relation to the issues of custody and upbringing taken in the interest of their welfare.

In this regard the following factors must be taken into account by the Court:

• The paramount interests and the welfare of the child
• No presumption in favour in the applicant parent
• The reasonable proposal that the parents with the residence order wishing to live abroad will carry great weight. Proposal must be scrutinised with great care to ensure there is a genuine motivation for the move and not to distance the contact between the child and the other non-custodial parent, the effect of the applicant parent and the new family of the child od refusal, the effect upon the child of the denial of contact with the other parent, the opportunity for continuing contact between the child and the parent left behind;
• Which of two possible outcomes will provide the greater stability of lifestyle for the child.
• The environment in which the child will reside
• The influence of the extended family
• The capacity and frequency of telephone/internet access by the non-custodial parent
• The past record of each parent in their relationship with the child in so far as it impinges on the welfare of the child.
• The respect in terms of the future of the parties to orders and direction of the court

In any decision involving the removal of a child from the jurisdiction it is extremely important that proper and workable proposal are put in place to ensure that the parent left behind can maintain an appropriate relationship with his/her child.