George, Robert H --- "The Shifting law: relocation disputes in New Zealand and England" [2009] OtaLawRw 6; (2009) 12 Otago Law Review 107

Last Updated: 25 February 2012

The Shifting Law: Relocation Disputes in New Zealand and England

Robert H. George*

Relocation disputes are widely acknowledged to be amongst the most difficult faced by family courts.¹ The commonalities which mark a case out as being a relocation dispute are that one parent who is, either solely or jointly, providing a child’s primary care wishes to move with the child over a distance which would affect the child’s on-going relationship with the other parent. In relocation cases, the parties are usually very conflicted, the interests at stake are high, the possibilities for compromise are severely limited, and the outcomes are often irreversible. Given these considerations, it is unsurprising that the law has struggled in finding an appropriate method of resolving these all too frequent conflicts.

This article offers two rather different views of how relocation disputes should be handled, comparing the New Zealand position with that in England. The New Zealand courts departed from the English approach some years ago, on the basis that it proceeded on a flawed interpretation of the child’s welfare. This article briefly maps the development of relocation law in New Zealand and in England, noting the similarities and differences at different periods. The focus, though, is on the current law, where the two jurisdictions remain highly divergent.

Statutory Frameworks

The New Zealand statutory framework is, for the most part, not specifically aimed at relocation, with general principles governing the law’s approach. The exception to this is that the Care of Children Act

2004 (‘COCA’) makes clear that relocation is a guardianship issue,² and not an aspect of the child’s residence.³ The implication of this is that guardians must cooperate to address questions of relocation together, with the child as appropriate, and seek court assistance if they are unable to agree.

Any such decision is to be based on the welfare principle: ‘The

* Lecturer in Law, Jesus College, Oxford, UK.

^{I would like to thank the participants at the Law Faculty seminar at Otago}

^{University in March 2008 who gave useful feedback on an earlier version}

^{of this paper. Special thanks are owed to Professor Mark Henaghan, who}

^{has been extraordinarily generous in helping me with the New Zealand}

^{side of my research. This article is drawn from parts of my doctoral thesis,}

^{which is funded by England’s Arts and Humanities Research Council}

^{(Grant No 135597), whose support I gratefully acknowledge.}

^{1 See, eg, D v S [2001] NZCA 374; [2002] NZFLR 116, CA (NZ) at [37]; Payne v Payne [2001] 1}

^{FLR 1052, CA (Eng) at [83].}

^{2 COCA, s 16(1) and (2)(b).}

^{3 Cf. the view which was sometimes expressed in relation to relocation}

^{before COCA: see, eg, Wright v Wright [1984] 1 NZLR 366, CA (NZ) at}

^371.

welfare and best interests of the child must be the first and paramount consideration’.⁴ The welfare principle is then guided by six ‘principles relevant to the child’s welfare and best interests’.⁵ However, although there are six listed principles, the court need only take into account those which are relevant,⁶ and may also take into consideration any other matters relevant to the child’s welfare or best interests.⁷

New Zealand legislation also now puts considerable emphasis on the child’s views. It is provided in COCA s 6(2) that:

6– (2) In proceedings [involving guardianship, day-to-day care, or contact]:

(a) a child must be given reasonable opportunities to express views on matters affecting the child; and

(b) any views the child expresses (either directly or through a representative) must be taken into account.

This section of COCA represents a significant change from the previous legislation,⁸ shifting attention from the child’s ‘wishes’ to her ‘views’. While the law does not require the child to express any views, it does demand that reasonable opportunities have been given for the child to do so if she wishes; one can no longer consider that a child might be unable to express her views. If the child does choose to express views, the court ‘must’ take them into account;⁹ and the child’s age and maturity is no longer relevant when assessing these views.¹⁰

In terms of the statutory underpinnings, English relocation law is

⁴ COCA, s 4(1).

^{5 COCA, s 5.}

^{6 COCA, s 4(5)(b).}

^{7 COCA, s 4(6).}

^{8 See previously Guardianship Act 1968, s 23(2): ‘the Court shall ascertain}

^{the wishes of the child, if the child is able to express them, and shall [...]}

^{take account of them to such extent as the Court thinks fit, having regard}

^{to the age and maturity of the child’. On the changes relating to the place}

^{of the child in decision-making brought about by COCA, see generally}

^{M Henaghan, ‘Legally Rearranging Families: Parents and Children After}

^{Break-Up’, in M Henaghan and B Atkin (eds) Family Law Policy in New}

^{Zealand (3rd edn, LexisNexis, 2007), pp 317-326.}

^{9 ‘The expression “take into account” is stronger than the common statutory}

^{formula “have regard to” but it does not go so far as to oblige the decision}

^{maker to act in accordance with any view expressed by the child. That}

^{would run counter to the Court’s wider obligation to assess what the}

^{child’s welfare and best interests require’: C v S [Parenting Orders] [2006]}

^{NZFLR 745, HC (NZ) at [31](h), Randerson J.}

^{10 ‘Rigid assumptions about what children can and cannot do at different}

^{stages of development are now considered inappropriate, as this will}

^{depend not so much on their age as on the activities and social contexts}

^{in which they have participated’: N Taylor, P Tapp and M Henaghan,}

^{‘Respecting Children’s Participation in Family Law Proceedings’ (2007)}

^{15 International Journal of Children’s Rights 61 at 68.}

governed principally by the welfare principle contained in s 1(1) of the Children Act 1989: ‘When the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration.’ The welfare principle is, in certain circumstances, supplemented by the welfare checklist.¹¹ This checklist includes considerations such as the effect on the child of any change in her circumstances; the child’s own wishes and feelings, considered in light of her age and maturity; the child’s physical, emotional and educational needs; and each parent’s capacity to meet those needs.

English law has no concept of guardianship; the closest equivalent is parental responsibility (‘PR’), which is acquired in much the same ways as guardianship is in New Zealand. Quite what the effects of PR are is a matter of some debate,¹² but the courts seem increasingly to consider that there is a duty of consultation in relation to major decisions about the child’s upbringing.¹³

Disputes about relocation can reach the courts in two ways.¹⁴ First, any case can be brought as an application for an order under s 8 of the Children Act. Section 8 includes powers to determine with whom the child is to live (residence orders),¹⁵ to order contact with other people

¹¹ Children Act 1989, s 1(3).

^{12 A list of the primary incidents of PR is suggested in one of the leading}

^{English textbooks, N Lowe and G Douglas, Bromley’s Family Law (10th edn,}

^{Butterworths, 2007), p 337, but there is much controversy outside of the}

^{core rights and duties. The granting of PR as a ‘status’, with no expectation}

^{of the parent’s giving (or even being allowed to give) substantive input}

^{into the child’s life is not unknown: see, eg, Re S (Parental Responsibility)}

^{[1995] 2 FLR 648, CA (Eng); Re D (Contact and Parental Responsibility:}

^{Lesbian Mothers and Known Father) [2006] 1 FCR 556, HC (Eng). For general}

^{discussion, see J Eekelaar ‘Parental Responsibility – A New Legal Status?’}

^{(1996) 112 Law Quarterly Review 233.}

^{13 See, eg, Re J (Child’s Religious Upbringing and Circumcision) [2000] 1}

^{FCR 307, CA (Eng). Such cases appear to fly in the face of s 2(7) of the}

^{Children Act 1989, which specifically says that anyone with PR ‘may act}

^{alone and without the other (or others) [who have PR] in meeting that}

^{responsibility’; for general discussion, see J Eekelaar, ‘Do Parents Have}

^{a Duty to Consult?’ (1998) 114 Law Quarterly Review 337.}

^{14 Elsewhere, I have argued that this orthodox view is open to question, and}

^{that there may in fact be only one route to the court, namely via s 8. To}

^{summarise, s 13 prohibits the removal of the child, but does not provide}

^{any mechanism by which leave to remove could be granted; it follows}

^{that any application should be brought under s 8, even though the need}

^{for an application arises because of s 13: see R George, ‘Changing Names,}

^{Changing Places: Reconsidering Section 13 of the Children Act 1989’ [2008]}

^{Family Law, 1121.}

^{15 The equivalent of an order for day-to-day care under COCA s 48.}

^{Residence orders usually give residence to a single person, but can be}

^{(and increasingly are) in the form of ‘shared residence orders’ to both}

^{parents (or indeed to non-parents). England has not so far followed the}

^{New Zealand and Australian moves towards greater emphasis on shared}

^care.

(contact orders), and to mandate or prohibit particular actions in relation to the child (specific issue orders and prohibited steps orders). Relocation sometimes arises in relation to residence orders, but is more often brought as a prohibited steps or specific issue application. In any application under s 8, the court has to make use of the welfare checklist.¹⁶

The other route to the court is via s 13 of the Children Act 1989, by virtue of which children who are the subject of a residence order cannot be removed from the country for more than one calendar month without written consent from all those with PR or the leave of the court.¹⁷ When the court is considering an application for leave to remove the child under s 13, it is advised to, but technically need not, make use of the welfare checklist.¹⁸

A Preliminary Observation

Before getting into the detail of the law, there is one point of significance which needs to be noted. In New Zealand, the principles which the court applies to a relocation dispute apply the same regardless of whether the proposed move is from Wellington to Napier or Wellington to Naples,¹⁹ though the greater impact of a bigger move on the child’s on-going relationship with the non-moving parent will be a significant factor to be considered. In England, on the other hand, the law divides sharply depending on whether the proposed move is outside the United Kingdom or not.²⁰ Moves outside the United Kingdom are prima facie blocked where a residence order is in force by s 13(1)(b) of the Children Act 1989, as seen above. The courts have taken the view that it follows from this provision that Parliament’s wish was that no leave would be required to move within the United Kingdom,²¹ though the other parent can make a prohibited steps order application which the parent seeking to move will have to defeat if the move is to proceed.²² The English courts

16. Children Act 1989, s 1(4) specifies when use of the s 1(3) list is mandatory.

^{17 Children Act 1989, s 13(1)(b).}

^{18 Payne v Payne [2001] 2 FLR 1052, CA (Eng) at [33].}

^{19 See Stadniczenko v Stadniczenko [1995] NZFLR 493, CA (NZ), Wellington}

^{to Auckland, and D v S [2001] NZCA 374; [2002] NZFLR 116, CA (NZ), New Zealand to}

^Ireland.

^{20 It may seem confusing that the law of England (and Wales) specifies a}

^{difference relating to the United Kingdom (ie including the separate legal}

^{jurisdictions of Scotland and Northern Ireland as well). The reason is}

^{purely pragmatic. Until 1989 the law did prevent removal of children}

^{from the legal jurisdiction of England and Wales, but it was considered}

^{unrealistic to continue to require parents to obtain leave before taking}

^{their children to Scotland or Northern Ireland: Law Commission, ‘Review}

^{of Child Law: Guardianship and Custody’ (Law Com No 172, 1988), at}

^[4.15].

^{21 Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, CA (Eng) at}

^641.

^{22 Re H (Children) (Residence Order: Condition) [2001] 2 FLR 1277, CA (Eng),}

^{though arguably this case takes too little account of s 1(5) of the Children}

consider that restrictions on a primary carer ’s place of residence within the United Kingdom should be made only in ‘truly exceptional’ cases,²³ and as a result there is no developed case law on domestic relocation in England because a decision to move within the United Kingdom cannot normally be challenged. The discussion which follows therefore relates to all relocation disputes in New Zealand, both domestic and international, but only to international relocation disputes before the English courts.

Setting Off Together: Relocation Law in the 1970s

Given that the statutory provisions in New Zealand and England give minimal guidance on the approach that should be taken to relocation, it is unsurprising that the courts in both countries have developed a considerable body of case law.

The first reported case in England which really fits the relocation pattern was in 1884,²⁴ but the origins of the modern law are in the 1970 case of Poel v Poel.²⁵ Since Poel is said to continue to underpin the modern English law, some discussion is in order. (In passing, it might be noted how remarkable it is that the court should proudly say that relocation law has not developed significantly since 1970.²⁶ It is hard to think of any other area of substantive English family law where a similar observation could be made;²⁷ and given the societal changes relevant to relocation which have taken place in the last 40 years, such inertia might be thought rather surprising.)

In Poel, the mother had primary care of the child; she had remarried, and wished to emigrate from England to New Zealand where her new husband had good job prospects. The trial judge considered the effect of loss of contact with the father to be too great, and refused leave, but the Court of Appeal unanimously reversed him. There is little indication that the judges in Poel realised how influential their decision would prove to be, and the approaches of the judges were not entirely consistent.

Sir Gordon Willmer treated the case as primarily about the role of the appellate court, and questioned whether there were any grounds

Act 1989, which states that the court should not make an order in relation to a child unless doing so will be better for the child than making no order at all (the no-order principle).

²³ See most recently Re B (A Child: Prohibited Steps Order) [2008] 1 FLR 613, CA (Eng) at [7]; the House of Lords approved this approach in Re G (Children) (Residence: Same-Sex Parents) [2006] 2 FLR 630 at [15]; but cf Re S (A Child) (Residence Order: Condition) (No 2) [2003] 1 FCR 138, CA (Eng), which stressed that ‘exceptional’ does not mean that the primary carer ’s parenting ability must be in doubt.

^{24 Hunt v Hunt [1884] UKLawRpCh 246; (1884) 28 Ch D 606, CA (Eng).}

^{25 Poel v Poel [1970] 1 WLR 1469, CA (Eng), hereafter ‘Poel’.}

^{26 See, eg, Payne v Payne [2001] 1 FLR 1052, CA (Eng) at [83].}

^{27 The obvious and significant exception is J v C [1969] UKHL 4; [1970] AC 668, HL (Eng),}

^{which remains highly influential in its interpretation of the welfare}

^{principle. However, the application of this principle to virtually every}

^{area of family law has changed almost beyond recognition since then.}

to interfere with the judge’s decision, even though he himself would have granted leave.²⁸ The issue was, he said, ‘a matter very much for the discretion of the judge’, determined only by the welfare principle.²⁹

However, since the other two appeal judges had taken ‘a more decided view’ that the trial judge had erred, Sir Gordon refused to dissent.³⁰

In a judgment similar to Sir Gordon’s (other than on his conclusion on the facts), Winn LJ also asked what this particular child’s interests demanded. On the facts, his Lordship thought that the judge had given too little weight to the mother ’s health and happiness on which the child was dependent, and thought it ill advised to prevent the mother doing something which was ‘quite clearly’ in the child’s interests.³¹

A slightly different approach was taken by the third judge. Sachs LJ approached the appeal as raising a point of principle about the upbringing of children after parental separation. In the key passage, which has been most frequently cited in later cases, his Lordship said:³²

Once [...] custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may [...] produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child.

Such decisions of the primary carer were, said Sachs LJ, ones ‘which the parent who has not been given custody may well have to bear ’.³³

New Zealand relocation cases in this period are few and far between, but seem to proceed on the basis that Poel expressed the approach taken in New Zealand.³⁴ However, it was not long before a difference in approach began to be seen.

First Signs of a Difference in Approach? Relocation Law in the 1980s

As the 1980s began, the English courts began to focus more on the

^{‘principled’ approach to relocation suggested by Sachs LJ in Poel. In}

^{Chamberlain v de la Mere,35 Ormrod LJ (purporting to reaffirm the Poel}

^{approach) said that, when dealing with relocation disputes:36}

The question [...] is, is the proposed move a reasonable one from the point

²⁸ Poel at 1474.

^{29 Ibid.}

^{30 Ibid.}

^{31 Ibid at 1473.}

^{32 Ibid.}

^{33 Ibid.}

^{34 See, eg, Willamson v Willamson (High Court, Invercargill, M42/77, 1}

^{December 1974, Somers J).}

^{35 (1983) 4 FLR 434, CA (Eng).}

^{36 Ibid at 442, quoting his earlier judgment in the unreported case of Moodey}

^{v Field (1982), CA (Eng).}

of view of the adults involved? If the answer is yes, then leave should only be refused if it is shown beyond any doubt^[37] that the interests of the children and the interests of the custodial parent are incompatible.

Although Chamberlain and similar cases³⁸ were not explicitly discussed in the New Zealand courts, the English approach gradually began to wane in its influence. In an appeal primarily to do with rights of appeal under the Guardianship Act 1968, the New Zealand Court of Appeal took the opportunity to make some remarks about relocation. The joint judgment of Cooke and Richardson JJ in Wright v Wright started by laying out the prima facie position of primary carers: ‘unless restricted by statutory provision or court order or agreement, the person entitled to custody must have reasonable freedom to select the child’s place of residence’.³⁹

Thus far, this decision looks not unlike the English approach; but the judges went on:⁴⁰

Restrictions, however, are common. By s 11(2) of the Guardianship Act a custody order may be made subject to such conditions as the Court thinks fit.^[41] Consequently there can be conditions as to place of residence [...] Access rights ordered or agreed may be infringed by significant changes of the child’s residence without consent or Court approval. For instance a term that the non-custodial parent is to have reasonable access could be broken by moving the child from one city to another.

This view can be seen to contrast with the English position. While the English court was saying that moves which were reasonable for the parent to make should not lightly be interfered with, the New Zealand court was suggesting that restrictions on movement were common, and could be implied from the presence of a contact order (as it would now be called) in favour of the other parent.

An Apparent Divergence: Relocation in the 1990s

However, perhaps surprisingly, the Court of Appeal decision in Wright had relatively little effect on the substantive New Zealand law. Trial judges continued to place reliance on the English authorities,⁴² and as late as March 1995 the Family Court was able to say that ‘the weight of the caselaw favours an ability on the part of the prime caregiver to live where he or she chooses’ and that ‘where there is a genuine reason to

³⁷ One should be wary of dissecting judgments as if they were Acts of Parliament, but note that ‘beyond any doubt’ is a standard of proof otherwise unknown to the law.

^{38 See, eg, Lonslow v Hennig (formerly Lonslow) [1986] 2 FLR 378, CA (Eng);}

^{Belton v Belton [1987] 2 FLR 343, CA (Eng).}

^{39 (1984) 2 NZFLR 335, CA (NZ) at 341.}

^{40 Ibid at 341. Somers J expressly reserved his opinion on whether an access}

^{order could, of itself, restrict the primary carer from changing the child’s}

^{residence (at 342), but agreed with the rest of the majority’s reasoning.}

^{41 See now COCA, s 48(5).}

^{42 See, eg, Kennedy v Tyley (1988) 4 NZFLR 708, FC (NZ); Bachelor v Parker}

^{(Family Court, Lower Hutt, FP432/92, December 1993, Judge Frater).}

wish to move, the impact on the child of not permitting that is the single most important consideration’.⁴³

There is a strong echo of English law in these comments. The early 1990s appeared, at least on the surface, to entrench the pro-relocation position of English law even further, when it was said that there was a ‘presumption in favour of the reasonable application of the resident parent’.⁴⁴ Given this strong view, one could be forgiven for thinking that the New Zealand Court of Appeal’s decision in Stadniczenko v Stadniczenko,⁴⁵ in which relocation law was significantly reformulated, marked the true departure of the English and New Zealand approaches. Considering that the English High Court had recently asserted that relocation applications would be presumptively granted, the New Zealand Court of Appeal’s approach certainly looks like a shift in approach.

The New Zealand Court of Appeal began by echoing the view taken in Wright v Wright,⁴⁶ namely that ‘[w]here children should reside is normally a matter to be determined by the custodial parent’,⁴⁷ albeit that the court had power to impose conditions under the Guardianship Act 1968 s 11(2). After reviewing authorities from a number of jurisdictions,⁴⁸ the Court of Appeal concluded that the overriding theme was that the child’s best interests should decide the matter. ‘Subject to that consideration, the rights of the custodial parent to pursue his or her own life or career and the rights of the non-custodial parent to access can be taken into account’ since these rights ‘may also be important considerations in their impact on the welfare of the child’.⁴⁹ The Court of Appeal went on:⁵⁰

The preferable approach is for the Court to weigh and balance the factors which are relevant in the particular circumstances of the case at hand, without any rigid preconceived notion as to what weight each factor should have.^[51] In most cases, an important factor in favour of the custodial parent is that the award of custody shows that from the day to day point of view the best interests of the child lie with its being with the custodial parent, and an incident of custody is the decision where to live. The wellbeing of the new family unit bears on the best interests of the child. The nature of the relationship between the child and the access

⁴³ C v C [1995] NZFLR 360, DC (NZ) at 368.

^{44 MH v GP (Child: Emigration) [1995] 2 FLR 106, HC (Eng) at 110.}

^{45 [1995] NZFLR 493, CA (NZ), hereafter ‘Stadniczenko’.}

^{46 (1984) 2 NZFLR 335, CA (NZ).}

^{47 Stadniczenko at 498.}

^{48 The main cases were: Poel v Poel [1970] 1 WLR 1469, CA (Eng); Craven}

^{v Craven [1976] FamCA 28; (1976) FLC 90-049, Family Court (Australia); Kuebler v Kuebler}

^{[1978] FamCA 26; (1978) FLC 90-434, Family Court (Australia); Blois v Blois (1988) 210 APR}

^{328, Supreme Court (Nova Scotia); and Carter v Brooks (1990) 77 DLR (4th)}

^{45, CA (Ontario).}

^{49 Stadniczenko at 500.}

^{50 Ibid.}

^{51 This point represents a reaffirmation of orthodox New Zealand family}

^{law, since it was established by the Court of Appeal in 1978 that judges}

^{must not give ‘undue emphasis’ to any factor when determining what the}

^{child’s welfare demanded: G v G [1978] 2 NZLR 444, CA (NZ) at 447.}

parent will always be of importance, and the closer the relationship and the more dependent the child is on it for his or her emotional wellbeing and development the more likely an injury resulting from the proposed move will be. The reason for the move is important, and also the distance of the move. The child’s views are relevant. The foregoing factors are far from representing a complete list of what may be relevant.

The court therefore identified five ‘important’ factors bearing on the assessment of the child’s welfare in a relocation case: the wellbeing of the new family unit; the relationship with the access parent; the reason for the move; the distance involved; and the child’s views. On its face, this approach is quite different from that being promulgated in England at the same time.

However, despite the apparent ‘presumption’ in favour of relocation applications, and the focus on primary carers’ happiness, a review of English court decisions in the 1990s suggests that the approach of the English judiciary was not as dissimilar to their New Zealand counterparts as it might appear. During the period from roughly 1991 to 1999, English trial judges who refused leave to relocate were relatively frequently upheld on appeal;⁵² some judges who granted leave were reversed,⁵³ and other cases were remitted for retrial on the basis that the trial judges had underestimated the importance of the child’s relationship with the other parent.⁵⁴ (That said, the tides in favour of relocation were not entirely stemmed, and other cases upheld decisions to grant leave or reversed decisions to refuse leave.⁵⁵)

The apparent difference between the approach which the English courts were asserting and the approach which could be discerned from an examination of case outcomes was noticed by commentators at the time. In 1997, Chris Barton wrote that ‘current English law, whilst notionally retaining a traditional presumption in favour of the resident parent, now favours [a] more even-handed (and thus less certain) [...] approach’.⁵⁶ So although it looked as if English and New Zealand judges were taking quite different approaches, in reality there was probably little practical difference beyond the rhetoric. However, this similarity was not to last.

⁵² See, eg, Re T (Removal from Jurisdiction) [1996] 2 FLR 352, CA (Eng); Re S (Minors) [1996] CLY 644, CA (Eng); Re K (Residence Order: Securing Contact) [1999] 1 FLR 583, CA (Eng); Re C (Leave to Remove from Jurisdiction) [2000]

^{2 FLR 457, CA (Eng).}

^{53 See, eg, M v M (Removal from Jurisdiction) [1993] 1 FCR 5, CA (Eng).}

^{54 See, eg, M v M (Minors) (Removal from Jurisdiction) [1962] VicRp 3; [1992] 2 FLR 303, CA}

^(Eng).

^{55 See, eg, Re L (Removal from Jurisdiction) [1992] 1 FCR 325, HC (Eng); Re B}

^{(Removal from Jurisdiction) [1994] 2 FCR 309, CA (Eng); H v H (Residence}

^{Order: Leave to Remove from Jurisdiction) [1995] 1 FLR 529, CA (Eng); Re}

^{E (Residence: Imposition of Conditions) [1997] 2 FLR 639, CA (Eng) – a rare}

^{English case on domestic relocation.}

^{56 C Barton, ‘When Did You Next See Your Father? Emigration and the}

^{One-Parent Family’ [1997] Child and Family Law Quarterly 73 at 77.}

^{An Actual Divergence: Relocation in the 21st Century}

The first indication of a change in the English approach came in 1999 with the Court of Appeal decision in Re C (A Child) (Leave to Remove from Jurisdiction).⁵⁷ The trial judge had considered the authorities and refused leave to remove the child. The majority judges, who admitted to not being experts on family law,⁵⁸ upheld the decision, holding there to be no grounds to interfere with the judge’s decision, and noting that the judge’s view that the mother would not be unduly affected by refusal of leave was one which he was entitled to make. Thorpe LJ, a Family Division judge, gave a strong dissent, arguing that the judge had failed to give sufficient weight to the direct or indirect consequences to the child of refusing the mother leave to follow a reasonable life course.

It was roughly a year after Re C that the now-leading case of Payne v Payne was heard in the Court of Appeal;⁵⁹ both Thorpe LJ and Dame Elizabeth Butler-Sloss P, then the President of the Family Division of the High Court, gave full judgments.⁶⁰ The mother in Payne was a New Zealander who wished to return home with the four year old child; the English father opposed the move. Appealing from the trial judge’s decision to grant leave, the father argued that the stated presumption in favour of relocation was contrary both to the principle that the welfare of the child should be the paramount consideration,⁶¹ and to the right to a fair trial.⁶²

Both judgments in the Court of Appeal were clear that there was no incompatibility between human rights and the welfare principle as a general proposition;⁶³ but they agreed that a presumption would be contrary both to the welfare principle and to the Human Rights Act

1998.⁶⁴ The court rejected the view that the caselaw proceeded on a basis which was contrary to the welfare of the child.⁶⁵ Thorpe LJ reviewed the authorities, which he said:⁶⁶

demonstrate[d] that relocation cases have been consistently decided upon the application of the following two propositions:

(a) the welfare of the child is the paramount consideration; and

⁵⁷ [2000] 2 FLR 457, CA (Eng).

^{58 Ibid at 463 (Chadwick LJ) and 467 (Morritt LJ).}

^{59 [2001] 2 FLR 1052, CA (Eng), hereafter ‘Payne’.}

^{60 Robert Walker LJ agreed with both judgments, and recanted from earlier}

^{obiter comments in which he had queried the continuing authority of Poel:}

^{Payne at [65].}

^{61 Children Act 1989, s 1(1).}

^{62 European Convention for the Protection of Human Rights and}

^{Fundamental Freedoms, 1950, Art 6, incorporated into English law by}

^{the Human Rights Act 1998.}

^{63 Payne at [39] and [78].}

^{64 Ibid at [25] and [82].}

^{65 Ibid at [16] and [83].}

^{66 Ibid at [26].}

(b) refusing the primary carer ’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.

From this discussion, both judges proceeded to lay out how relocation disputes should be approached. Because it is significant for the comparison with the New Zealand law, which engaged at length with the Payne decision, the guidance of the two judges is set out in full.

Butler-Sloss P prefaced her summary by saying that she was not excluding other factors that would arise in each case, but that the following should be taken into account:⁶⁷

(a) The welfare of the child is always paramount.

(b) There is no presumption created by s 13(1)(b) in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the

^{parent left behind may be very significant.}

All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant.

In his summary, Thorpe LJ said:⁶⁸

To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother ’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:

(a) Pose the question: is the mother ’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask is the mother ’s application realistic, by which I mean

⁶⁷ Ibid at [85]-[86].

^{68 Ibid at [40]-[41].}

founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal? [Where the mother cares for the child or proposes to care for the child within a new family, the impact of refusal on the new family and on the stepfather or prospective stepfather must also be carefully calculated.⁶⁹]

(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.

In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.^[70]

From this, it might be thought that there is some difference between the two judges.⁷¹ While Butler-Sloss P explicitly gave a non-exhaustive list of relevant factors, Thorpe LJ laid out a clear approach both as to the relevant factors and as to the weight which should be given to those factors. Nonetheless, it can be accepted that the core principles being enunciated by the court were consistent: there is no presumption favouring relocation but a resident parent’s reasonable proposals for moving carry great weight,⁷² and the effect of refusing those proposals on the parent, her partner if she has one, and the child is very important.

⁶⁹ This addition was made by Thorpe LJ in Re B (Removal from Jurisdiction);

^{Re S (Removal from Jurisdiction) [2003] 2 FLR 1043, CA (Eng) at [11].}

^{70 In later cases, Thorpe LJ has said that this final paragraph would have}

^{been better expressed as part of para [40](c), rather than separately in}

^{para [41]: Re B (Leave to Remove: Impact of Refusal) [2005] 2 FLR 239, CA}

^{(Eng) at [14].}

^{71 Though the President subsequently said that she considered there to be}

^{‘no real difference of approach’ between the judgments: Re S (A Child)}

^{(Residence Order: Condition) (No 2) [2003] 1 FCR 138, CA (Eng) at [20].}

^{72 It has recently been said that the Payne formulation ‘is commonly}

^{perceived as walking and talking like a presumption, [and so] it may not}

^{be sufficient to say that it is not, in legal terms, a presumption’: C Geekie,}

^{‘Relocation and Shared Residence: One Route or Two?’ [2008] Family Law}

^{446 at 451-2.}

If the other parent’s opposition to the move is based on the child’s welfare, then the impact on the child of the loss of that relationship may also be important.

The lengthy reconsideration of relocation law in Payne came quickly to the attention of the New Zealand courts. Within a month of the Payne judgment being delivered, the New Zealand High Court heard D v S in which Payne was considered;⁷³ however, that case went on to the Court of Appeal, and the High Court’s reasoning was disapproved. Before the Court of Appeal heard D v S, Judge Inglis QC heard two cases in the Family Court.⁷⁴ Judge Inglis QC concluded that Payne was not reflective of the approach which should be taken in New Zealand:⁷⁵

it effectively constricts the welfare test by assuming too readily that the enhanced happiness of the custodial parent who is allowed to relocate will necessarily enhance the welfare of the child to a greater degree than the child’s continuing regular contact with the other parent. In some cases that may be true, but as a generality its validity and logic are surely open to question.

The English approach was ‘parent-centred rather than child-centred’,⁷⁶ and the approach taken in Stadniczenko should continue to be applied. In essence, this is also the reasoning of the Court of Appeal in D v S,⁷⁷ which was heard at the end of 2001.

The Court of Appeal unanimously held that Payne was inconsistent with New Zealand law and should not be followed and, by a 4:1 majority,⁷⁸ considered that Panckhurst J in the High Court had been materially influenced by the English case and therefore that his decision would have to be quashed.⁷⁹ The Court of Appeal made seven points of principle relevant to relocation,⁸⁰ which can be summarised as:

(a) the child’s welfare, although not the only factor to take into account,⁸¹ must be more than just the top item on a list of factors;

(b) the welfare principle in s 23 of the Guardianship Act 1968 is consistent with the United Nations Convention on the Rights of the Child;

⁷³ Panckhurst J’s judgment is unreported, but paragraphs [23]-[29], which address Payne, are laid out in full in the Court of Appeal’s decision: [2001] NZCA 374; [2002] NZFLR 116, CA (NZ) at [16].

^{74 Gray v McGill [2001] NZFLR 782, FC (NZ); Hemer v Eden [2001] NZFLR}

^{913, FC (NZ).}

^{75 Gray v McGill, ibid, at [6].}

^{76 Hemer v Eden [2001] NZFLR 913, FC (NZ) at [46].}

^{77 [2001] NZCA 374; [2002] NZFLR 116, CA (NZ), hereafter ‘D v S’.}

^{78 Blanchard J thought that the High Court had discussed but not followed}

^Payne.

^{79 D v S at [63].}

^{80 Ibid at [30]-[37].}

^{81 For example, ‘freedom of movement is an important value in a mobile}

^{community’: D v S at [30].}

(c) all aspects of welfare have to be taken into account: ‘[t]here is no room for a priori assumptions’;⁸²

(d) there must be no gender bias in deciding custody;⁸³

(e) decisions about residence and relocation may be affected by the longevity of existing arrangements;

(f) decisions of courts outside New Zealand are likely to be of limited assistance because of different social landscapes: ‘two relevant features of the New Zealand scene [...] are the growth and degree of involvement of both parents in family care, and a clear move in Family Court orders away from [...] older “property” based concepts of sole custody and access, to shared care’;⁸⁴

(g) relocation cases are difficult and family judges have given anxious thought to the appropriate way to deal with them; it was not appropriate for the Court of Appeal to issue guidelines on this issue.

The Court of Appeal also discussed Payne specifically. The court set out the two propositions which Thorpe LJ had ‘extracted’ from English authorities (namely, (a) the child’s welfare is paramount, and (b) refusing leave is very likely to be harmful for the child and so leave should be granted unless it is incompatible with the child’s interests⁸⁵) and said:⁸⁶

so far as New Zealand law is concerned, [...] proposition (a) is the governing requirement under New Zealand law and not simply a proposition to be weighed alongside [proposition] (b); and as to (b), there can be no justification for isolating one factor and according it presumptive effect.

[...]

Payne v Payne is thus marked by the emphasis on guidelines, by the prescribing of an approach to relocation cases where there is a primary carer who wishes to remove the child from the jurisdiction; and by the allocation of particular weight to the reasonable proposals and emotional and psychological wellbeing of the primary carer. It is not a long step to the assumption that the happiness of the relocating parent will meet the best interests of the child’s welfare.

⁸² D v S at [33]. But cf point (e), about the importance of the longevity of arrangements.

⁸³ The introduction of s 23(1A) into the Guardianship Act 1968 by the Guardianship Amendment Act 1980 was specifically intended to abolish the previous practice of preferring mothers for girls and children under

^{5, and father for boys of 5 and over (the so-called ‘mother principle’ and}

^{‘father principle’).}

^{84 D v S at [36].}

^{85 Payne at [26].}

^{86 D v S at [41], [46] and [47].}

For reasons apparent from the earlier analysis, presumptive or a priori weighing is inconsistent with the wider all-factor child-centred approach required under New Zealand law.

The New Zealand court thereby affirmed the approach taken in Stadniczenko seven years earlier, and said that all the factors have to be weighed in determining the course of action most in the child’s welfare. No factor carries any a priori weight; it will be for the trial judge to decide, on the facts, what is overall most important for this particular child.

Later Developments in England

Given this firm rejection of the English approach in D v S, it is unsurprising that little further consideration has been given to English relocation law in New Zealand. However, one or two subsequent developments may be worth noting. First, the importance of the impact of refusing leave on the primary carer, and hence on the child,⁸⁷ has been emphasised as the key factor. In one of the appeals in Re B (Removal from Jurisdiction); Re S (Removal from Jurisdiction),⁸⁸ the mother had formed a relationship with a South African man who wanted to return home; the trial judge had refused leave. Giving the leading judgment on appeal, Thorpe LJ said that ‘once the judge had recognised the mother as plainly the primary carer, he had no option but to recognise the reality that her future lay with [her new partner] and that necessarily meant a South African future’.⁸⁹

This raises the second point. Most English cases continue to involve a single primary carer, though there have been cases in the High Court where the child was in a shared care arrangement.⁹⁰ These shared care cases have generally proceeded on the basis that Payne is of limited use,⁹¹ relying on Butler-Sloss P’s comment in Payne that the approach there suggested only applied where residence was not a ‘live issue’.⁹² However, two High Court decisions, both before Hedley J, suggest that the approach of favouring relocation may hold true even where there is shared care unless there are compelling counter-veiling considerations.

In Re D (Leave to Remove: Shared Residence),⁹³ the American mother was given leave to remove the child when care had been split 50:50 on the basis that she was more in touch with the child’s emotional needs.

⁸⁷ According to the Court of Appeal, ‘the balance of authority in this area shows that almost inevitable is the transference of unhappiness from primary carer to child’: Re G (Removal from Jurisdiction) [2005] 2 FLR 166, CA (Eng) at [24].

^{88 [2003] 2 FLR 1043, CA (Eng).}

^{89 Ibid at [15], emphases added.}

^{90 As well as the cases discussed below, see Re B (Leave to Remove) [2007]}

^{1 FLR 333, HC (Eng) and Re MK (Relocation Outside Jurisdiction) [2007] 1}

^{FLR 432, CA (Eng), reversing both parts of the High Court’s decision to}

^{refuse leave to relocate and make a shared residence order.}

^{91 Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330, HC (Eng).}

^{92 Payne at [86].}

^{93 [2006] Family Law 1006, HC (Eng).}

However, since the judge had concluded that both parents were capable of meeting the child’s welfare, one might wonder whether the disruption caused to the child by moving to the USA, together with the loss of contact with the father with whom he had ‘a real attachment’, was justified. (The judge also, rather curiously, concluded that it was appropriate to continue the shared residence order, even though the child and the father would be living on opposite sides of the Atlantic. It is hard to see that this order could be said to ‘reflect the reality’ of the child’s life, as the Court of Appeal has suggested a shared residence order should.⁹⁴)

In the second shared care case, the father was Welsh and the child had been raised bilingually. The American mother sought to remove the child to Texas, but the High Court refused leave because the loss of the child’s Welsh language and culture, along with contact with the father, would be more detrimental than requiring the mother to remain – or even of loss of contact with the mother if she chose to return home without the child.⁹⁵ The implication of the reasoning is that the outcome would have been different if the father had not raised the child speaking Welsh; which leaves little scope for the decision helping parents who do not have another language or heritage to draw on, but who may nonetheless oppose the removal of their children to the other side of the world.

So, although shared care cases may give more opportunity for strong factors weighing against a move to arise, the basic approach to relocation seems surprisingly unaffected by this factor. Recent arguments that Payne should be reconsidered in light of increasing shared care⁹⁶ have been firmly rejected by the Court of Appeal.⁹⁷ The shared care context, which remains less prevalent in England than in New Zealand, has thus failed to have any strong impact on relocation law. The Payne approach seems set to stay for the foreseeable future.⁹⁸

⁹⁴ D v D (Shared Residence Order) [2001] 1 FLR 495, CA (Eng) at [34]. In another curious relocation case, the trial judge had refused permission to take the child to South Africa for two years while the mother conducted research for her PhD, and had instead made a shared residence order. The Court of Appeal allowed the mother ’s appeal against the refusal of permission to relocate, but continued the shared residence order which was, said Wall LJ, ‘a formal recognition of an underlying reality, namely, that both parents have parental responsibility which they will continue to exercise’: Re A (Temporary Removal from Jurisdiction) [2005] 1 FLR 639, CA (Eng) at [26]. With respect, this approach seems to blur the functions of parental responsibility and residence, which the Children Act 1989 (and most case law) so carefully separates. In general, it is doubtful whether it can be appropriate to make a shared residence order if the parents live far apart, and especially if they do not even live on the same continent: what ‘reality’ could such an order be said to reflect?

^{95 Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330, HC (Eng) at}

^[23].

^{96 The point is neatly summarised in C Geekie, ‘Relocation and Shared}

^{Residence: One Route or Two?’ [2008] Family Law 446.}

^{97 Re G (Children) [2008] 1 FLR 1587, CA (Eng).}

^{98 For a more general affirmation of the Payne approach, see Re W (Children)}

^{Later Developments in New Zealand}

The debate in New Zealand since D v S has been about whether COCA’s changes to child law generally have, by implication, changed the approach that should be taken to relocation cases. Before COCA entered force, Principal Family Court Judge Boshier wrote extra-judicially that he considered that the changes brought in by COCA would make it more difficult to obtain leave to relocate.⁹⁹ The PFCJ noted COCA’s requirement that the court place greater weight on maintaining relationships between the child and both parents,¹⁰⁰ the importance placed on on-going input and cooperation between guardians,¹⁰¹ and the greater emphasis given to the child’s own views.¹⁰² These views have subsequently been repeated in the Family Court since COCA came into force.¹⁰³

The High Court has taken a slightly different line on the effect of COCA. In ACCS v AVBM [Parenting Order],¹⁰⁴ Panckhurst J said that he was ‘not [...] persuaded that the new Act does herald a change in approach. Most importantly, the paramountcy principle remains at centre stage’.¹⁰⁵ In Downing v Stamford,¹⁰⁶ Priestley J reaffirmed the High Court’s view that the COCA principles ‘do not alter the centrality of a child’s welfare and best interests so far as relocation cases are concerned’,¹⁰⁷ and reminded the Family Court that such decisions were binding on it. The Family Court decision in MBF v SRF,¹⁰⁸ suggesting a change in approach, was expressly over-ruled.¹⁰⁹ (Judges who argue for a change in approach base their view on parts of COCA which emphasise ‘continuity and stability of parenting arrangements’;¹¹⁰ however, it should be remembered that, although use of the principles relevant to best interests is mandatory, none of the individual considerations specified in COCA s 5 will necessarily be applicable to any given case.¹¹¹)

Meanwhile, in his excellent new book on New Zealand family law, Donald Inglis argues that COCA does involve ‘a change in legislative

[2008] 2 FCR 420, CA (Eng) at [18].

^{99 Judge Peter Boshier, ‘Relocation Cases: An International View from the}

^{Bench’ (2005) 5 NZFLJ 77.}

^{100 COCA, s 5(b) and (d).}

^{101 COCA, s 5(c) and s 16.}

^{102 COCA, s 6.}

^{103 See BDD v IBG [Relocation] [2007] NZFLR 1, FC (NZ).}

^{104 [2006] NZFLR 986, HC (NZ) at [52]-[53].}

^{105 See also Brown v Argyll [2006] NZFLR 705, HC (NZ) at [60], Priestley J; S}

^{v L [2008] NZFLR 237, HC (NZ) at [25], Harrison J.}

^{106 Downing v Stamford (HC, New Plymouth, CIV 2007-443-456, 18 Dec 2007,}

^{Priestley J).}

^{107 Ibid at [49].}

^{108 (2007) FRNZ 370, FC (NZ).}

^{109 Downing v Stamford (HC, New Plymouth, CIV 2007-443-456, 18 Dec 2007,}

^{Priestley J) at [53].}

^{110 BDD v IBG [Relocation] [2007] NZFLR 1, FC (NZ) at [50]; see similarly}

^{MBF v SRF (2007) FRNZ 370, FC (NZ).}

^{111 COCA, s 4(5)(b)}

emphasis’,¹¹² but that it does not necessarily follow that it will be harder to persuade the court that relocation is in the child’s welfare and best interests. In his reading of the Act, the approach required under COCA

^{‘has in essence been the position in New Zealand since Stadniczenko v}

^{Stadniczenko and D v S’.113}

While it is possible to read these various views in a way which makes them compatible – the basic approach is unchanged, in that the child’s welfare is still the driving consideration, but the detail of how that approach is utilised has changed, which may, but will not necessarily, make obtaining leave to relocate harder – the direction in which the arguments are pulling does not seem entirely consistent. Cases in the three years since COCA entered force show that, on average, around

35 per cent of relocation applications succeed.¹¹⁴ This proportion is considerably lower than the 48 per cent success rate found in 1999-2000,¹¹⁵ which may bear out Judge Boshier ’s view that COCA has the effect of making it harder to relocate, even if there has been no legal change in approach.

(It may be worth noting that a 35 per cent success rate for relocation applications is low when compared with other jurisdictions, as well as when compared with previous practice in New Zealand. In Australia, which has had pro-shared parenting reform and is generally thought hostile to relocation, recent research has reported a 53 per cent success rate.¹¹⁶ In Canada, where the law has been stable since 1996,¹¹⁷ research suggests that somewhere between 50 and 60 per cent of applications for relocation succeed,¹¹⁸ though this drops to more like 30 to 40 per cent if the child spends (the equivalent of) three days a week with the non-moving parent.¹¹⁹ No equivalent data are available for England, but reported cases suggest a very high success rate.)

The other recent development in New Zealand law is an apparent

¹¹² B D Inglis, New Zealand Family Law in the 21st Century (Thomson Brookers,

^{2007), p 459.}

^{113 Ibid, p 460. See similarly the views expressed in D Webb et al (eds) Family}

^{Law in New Zealand (13th edn, Butterworth, 2007), at [6.115D].}

^{114 M Henaghan, ‘Care of Children Act Cases – Where Are We, Where Are}

^{We Going?’, LexisNexis Annual Child Law Conference, Auckland, April}

^{2008, available from [e-mail]. My thanks to Professor}

^{Henaghan for sending me a copy of this paper.}

^{115 M Henaghan, B Klippel and D Matheson, ‘Relocation Cases’, New Zealand}

^{Law Society Seminar, June 2000.}

^{116 P Parkinson, ‘The Realities of Relocation: Messages from Judicial}

^{Decisions’ (2008) 22 Australian Journal of Family Law 35.}

^{117 Since the Supreme Court decision in Goertz v Gordon (formerly Goertz)}

^{(1996) 134 DLR (4th) 321.}

^{118 R Thompson, ‘Movin’ On: Parental Relocation in Canada’ (2004) 42}

^{Family Court Review 398 at 404; N Bala and J Harris ‘Parental Relocation:}

^{Applying the Best Interests Test in Ontario’ (2006) 22 Canadian Journal of}

^{Family Law 127.}

^{119 R Thompson, ibid at 405.}

strengthening of the court’s position regarding the impact on the applicant parent of refusing leave to remove. It will be remembered that in D v S the Court of Appeal held there to be no justification for elevating this consideration above any of the other factors which played on the child’s welfare in a relocation dispute. The High Court has recently explored this idea further. In LH v PH,¹²⁰ Winkelmann J clarified that the Family Court judge ‘would have erred if he had addressed the application [by] focusing on the issue of the mother ’s emotional wellbeing as the primary or central issue’. As a general proposition, Winkelmann J’s comment is entirely in line with the New Zealand Court of Appeal’s approach: no factor should be given any a priori weighting. However, if the judge intended to mean that this factor could never be the central consideration, then with respect she goes too far.¹²¹ The decision in D v S intends only to avoid giving presumptive weight to any one factor; it does not follow that the applicant parent’s emotional and psychological wellbeing might not, on the facts, be the decisive factor.¹²²

Other judges have gone further, and suggested that only if the parent will be ‘compromised in a medical or psychological sense’ would that factor come to be of significance.¹²³ The High Court recently took up this theme: Duffy J noted in passing that:¹²⁴

Relocation will only be in the child’s best interests if his mother is so harmed by having to remain in New Zealand that her emotional and psychological health will deteriorate to a point where it will impact detrimentally on the child.

With respect, this approach seems dangerously close to giving a priori weight to one factor – that is to say, the primary carer ’s emotional and psychological wellbeing is being given presumptively little weight. The D v S approach would seem to require that Family Court judges be allowed to assess the weight of this, and every, factor based on the specific facts of the case before them. The High Court approach also risks creating a no-win situation for applicant parents. Unless they will be so devastated by refusal of leave that their psychological health will be impaired, they cannot relocate; but a parent who was that psychologically troubled might risk losing care of their child altogether if the other parent

¹²⁰ [2007] NZFLR 737, HC (NZ) at [37].

^{121 See S v L [2008] NZFLR 237, HC (NZ), where Harrison J confirmed (at}

^{[35]) that the parent’s wellbeing could not be ‘the primary or central}

^{issue’, but nonetheless recognised (at [36]) that the parent’s wellbeing}

^{was ‘an important consideration’ which would ‘have a direct effect’ on}

^{the child.}

^{122 This is apparent from the judgment of Blanchard J in D v S, since he was}

^{able to agree with the majority’s summary of the correct approach to}

^{the law and yet think that Panckhurst J had not erred in the High Court}

^{when he placed the mother ’s psychological wellbeing ahead of the other}

^{considerations. (Blanchard J thought that this was a finding of fact, rather}

^{than the result of a priori weighting: see D v S at [79].)}

^{123 Bartlett v Bartlett [2003] NZFLR 49, FC (NZ) at [51].}

^{124 B v B (HC Auckland, CIV-2007-404-5016, 9 May 2008) at [62].}

^{were capable of having day-to-day care.}

Concluding Remarks

Clearly, the factors which should be taken into account in deciding relocation disputes relate to interests of the highest order: the interest in living one’s life as one wishes; the interest in a meaningful relationship with one’s child; the interest in a good and happy primary carer or primary carers; the interest in on-going relationships with one’s family members. Everyone agrees that these factors have to be balanced in a way which promotes the child’s welfare and best interests; the divergence is mainly over how best to achieve this aim.

This article has offered a glimpse into the history of relocation law in New Zealand and England. It has been shown that the development of the law has not been entirely straightforward, and that the two jurisdictions have reached rather polarised positions in recent years. It is suggested that both approaches may be open to a degree of criticism – but we may yet hope that a better understanding of alternative perspectives will help our on-going reflections on how best to address the increasingly frequent problem of relocation.

The English position of giving a priori weighting to the primary carer ’s emotional and psychological well-being amounts to a virtual presumption in favour of relocation. This approach denies the child the opportunity to have the factors in favour of and against relocation assessed fairly in light of all the particular and individual circumstances of the child’s life;¹²⁵ it also fails to acknowledge the varied and complex rights and other interests of all parties involved.¹²⁶ The English courts would benefit from considering a broader range of factors, and from allowing all those factors to be balanced without pre-judging the importance of them. English law might also learn from the New Zealand approach which gives more acknowledgement to the role that both parents play in their children’s lives, especially in cases where care of the child is shared to a significant degree.

On the surface, the New Zealand approach of calling for all the factors to be weighed on the facts of the case is exactly what the above criticism of English law demands; but the practical reality seems rather different. New Zealand judges appear overly willing to conclude that a parent’s state of mind is of no relevance to the child’s welfare and best interests. While this position may stem from a desire to distance the New Zealand approach from that taken in England, New Zealand courts need to be careful that they do not throw the baby out with the bathwater. Family Court judges must be able to conclude, if they see fit, that the applicant parent’s well-being is the decisive factor in relation to a particular

125. See generally M Hayes, ‘Relocation Cases: Is the Court of Appeal Applying the Correct Principles?’ [2006] Child and Family Law Quarterly 351.

^{126 J Herring and R Taylor, ‘Relocating Relocation’ [2006] Child and Family Law}

^{Quarterly 517, discussing the rights involved in relocation disputes.}

child’s welfare – so long as that conclusion is a finding of fact and is not based on a presumption. The approach laid down by the New Zealand Court of Appeal in D v S has much to commend it; but it is crucial to realise that the criticisms of the English approach made in that case do not equate to the conclusion that no weight should be given to the primary carer ’s role in the child’s life. Recent remarks suggesting that nothing short of medically recognised psychological harm will suffice to make the primary carer ’s state of mind relevant are shocking, both in their lack of compassion and in their failure to realise that children do not exist in isolated, court-created bubbles, detached from the lives of those around them. There is a difference between saying that one factor should not have presumptive weight, and saying that it should have no weight at all.

Both jurisdictions would benefit from a more rigorous investigation of the possibilities for on-going contact in the case where relocation is allowed. Meaningful contact can be maintained over significant distances, especially with slightly older children; but it is also important to be realistic, and to fit proposals for contact into the bigger picture of the welfare of the child, her circumstances and her home life. We should be especially wary of apparently win-win solutions to the relocation puzzle, as experience in Australia shows. There have been several recent Australian cases which have allowed relocation applications, but only subject to high direct contact conditions.¹²⁷ This approach gives the resident parent freedom to move while at the same time preserving the relationship between the child and the other parent, and so appears to satisfy everyone. However, the conditions imposed often wipe out any financial advantages of relocating, prevent the parties from getting on with their new lives, and, most importantly, put huge strains on the children whose best interests we are supposed to be promoting. As Patrick Parkinson puts it, ‘being uprooted from home and travelling thousands of kilometres across the country for a week every month is perhaps not the kind of “routine” that promotes a stable environment for children’.¹²⁸

Two further points can be considered when we think about how to move forward in the relocation debate. First, if the relationship between the non-relocating parent and the child is of sufficient importance that restrictions on the primary carer ’s place of residence are being considered, there is also something to be said for asking whether the other parent might realistically be expected to move as well.¹²⁹ That

¹²⁷ See, eg, M and S [2006] FamCA 1408; (2007) 37 FamLR 32; Mazorski and Albright [2007] FamCA 520; (2007) 37 Fam LR 518. In Mazorski, the mother was allowed to relocate from New South Wales to Queensland, but the pre-school age child was to have contact with the father for a week every month, which was to take place in the father ’s home town for nine months of the year and the mother ’s new town the other three.

^{128 P Parkinson, ‘The Realities of Relocation: Messages from Judicial}

^{Decisions’ (2008) 22 Australian Journal of Family Law 35, text at n 68.}

^{129 The English courts have never given much attention to this idea, but it}

is not to say that the court should, or could, order the parent to move; but that parent’s willingness to consider the possibility of moving is one relevant consideration in deciding what lengths to go to to preserve his relationship with the child.

Second, there may be value in distinguishing different types of relocation cases, and in analysing more explicitly the precise options which the court has available to it. A distinction could be drawn based on the existing care arrangements,¹³⁰ differentiating sole and joint care cases, as some jurisdictions already do.¹³¹ The considerations at play when the child lives entirely with one parent and has a minimal relationship with the other parent are almost entirely different from cases where the parents genuinely share the care of the child. Although it is hard to see precisely how to draw this line, one option is to ask whether the child can realistically live full-time with either parent or not. This is the key question, for the answer affects the options which are available to the court. If only the applicant parent can, for whatever reason, act as primary carer, then refusing leave to relocate requires that parent to remain and care for the child in the present location. If both parents are able and willing to act as primary carer,¹³² refusing leave does not necessarily require the applicant parent to remain.¹³³ In assessing what is best for the child, these considerations, and their impact on how the parties feel, may be highly relevant. There would be value, therefore, in engaging more explicitly with this dimension.

Given the interests at stake in relocation disputes, it is unsurprising

has been mentioned in New Zealand cases. The New Zealand Family Court once argued that the party opposing a relocation ‘has as much an obligation to show why he or she cannot shift to the new place as to why the children should not be allowed to shift’: NW v MW [Parenting Order] [2006] NZFLR 485, FC (NZ) at [10]. For a fuller argument on this point, see M Weiner, ‘Inertia and Inequality: Reconceptualizing Disputes Over Parental Relocation’ (2007) 40 University of California Davis Law Review

^1747.

^{130 Rather than, for instance, the reason for relocating, which the English}

^{courts explicitly held to be irrelevant to the approach taken: Re B (Leave to}

^{Remove: Impact of Refusal) [2005] 2 FLR 239, CA (Eng) at [17]. The Canadian}

^{Supreme Court similarly held that the reason for moving would only be}

^{relevant in the exceptional case where it affected the parent’s ability to}

^{care for the child: Goertz v Gordon (formerly Goertz) (1996) 134 DLR (4th)}

^{321 at [49](7)(e).}

^{131 See, eg, O’Connor v O’Connor (2002) 793 A 2d 810, Superior Court (New}

^{Jersey, USA). My thanks to Professor Tom Oldham for bringing this case}

^{to my attention.}

^{132 Each parent’s respective capacity is for the judge to assess, on the}

^{particular facts of the case. This information would then be used in}

^{conjunction with the rest of the facts in deciding which option, overall,}

^{is best for the child.}

^{133 It should be recognised, though, that many parents would feel under}

^{considerable pressure to remain even though they did not have to, if the}

^{alternative was to leave the child for whom they had been caring.}

that the law continues to grapple with finding the best solution. Open engagement with other jurisdictions allows us to benefit from positive aspects of other approaches, while also warning us of the possible pitfalls which can accompany seemingly sensible reforms. International dialogue about experiences of addressing these challenges will help us all on the road to an approach to relocation disputes which satisfies more of the people more of the time.