Tuesday, 27 August 2013

Relocation Disputes: First Findings from the 2012 Study: Executive Summary

This post contains the Executive Summary of a research paper from my study of relocation cases in England and Wales. The full paper is now available to download without charge from the Social Science Research Network.

  

Relocation disputes are cases between separated parents where one of them proposes to move to a new geographic location with their child and the other parent objects to the proposals. This Research Paper reports the first set of findings from a major study of relocation cases in England and Wales based on cases decided in 2012. The data used come from 118 first instance court decisions in relocation cases (96 proposed international moves and 22 proposed moves within the UK) – the CC sample – and 187 responses from family lawyers to a research questionnaire about relocation disputes –the RQ sample. We use statistical techniques to analyse those cases and investigate patterns of outcomes.

Part 1 | Relocation Law in England and Wales: A Summary
The law governing relocation disputes, while different for proposed international moves and for those proposals involving moves within the United Kingdom, is relatively straightforward and can be explained simply. The welfare of the child concerned is the paramount consideration, with guidance then offered by appellate cases as to how the child’s best interests should be ascertained by judges in international and domestic relocation cases respectively.

Part 2 | Previous Research on Relocation Disputes
The simplicity of relocation law belies the extent to which relocation disputes are immensely difficult for all those involved, whether the children, the parents, the lawyers or the judges. Previous research in England and Wales has shown that there are concerns that the law itself, although well understood, may not have struck the right balance in its pursuit of the child’s best interests. However, while this view was shared by many, others thought that the English courts had shifted their approach in the mid- to late-2000s and were now approaching relocation cases more ‘rigorously’. At the same time, researchers in other jurisdictions were investigating case outcomes and patterns of decision-making in a way that, until now, has not been possible in England and Wales because of the lack of access to the relevant materials.

Part 3 | International and Domestic Relocation Disputes: Characteristics of Cases and Families
Cases in the dataset came from all over England and Wales, but there was a clear dominance of cases coming from London and the South East of England. Cases were heard by judges at all levels, with the bulk of international cases being tried by Circuit Judges and most domestic cases going before District Judges. In both domestic and international cases, applicants were more likely than respondents to be legally represented, and those who had legal representation usually had both a solicitor and a barrister.

In both international and domestic cases, most disputes involved a single child, with an average number of children per case of 1.5. In terms of children’s ages, the mean age was around 7 (just under for international cases, just over for domestic ones). International cases more often involved pre-school aged children than did domestic disputes, but in both samples the bulk of children were aged 4 through 9; few children aged 12 or over featured in either category.

The vast majority of applications were brought by mothers (around 95%). In terms of care arrangements, a small minority of cases (around 5%) involved equal shared care arrangements, while a larger minority (7% in the CC sample, 38% in the RQ sample) involved 65/35 shared care arrangements. Conversely, in the CC sample overnight contact cases account for well over half of all cases, whereas in the RQ sample only around a quarter of cases were reported to be in this group. In both samples, a small minority of cases involved direct contact not including overnight stays or no direct contact at all.

Looking at parents’ relationships statuses, we see that parents in the international sample were more commonly married to one another previously, whereas the domestic cases involved a higher proportion of former cohabitants. In terms of each parent’s current relationship status, applicant parents are more likely to have remarried (35%, compared with 7% of respondents), whereas respondents are more likely to be in a cohabiting relationship or to be single (23% and 59% respectively, compared with 10% and 42% for applicants).

Some 70% of applicants in the international sample were foreign nationals seeking to leave the United Kingdom, most (though not all) proposing to return to their original home country. In terms of destinations for the international cases, the biggest category involved proposed moves to other EU countries (around 40%), with ‘North America’ and ‘Australia/New Zealand’ each accounting for around a quarter of cases. Domestic cases had an average travel time between the current location and the proposed destination of around 2.5 hours, though with a range from 1 hour to 11 hours.

Part 4 | International Relocation Disputes: Outcomes and Patterns
The overall success rate for litigated international relocation cases in the CC and RQ samples combined (N=141) was 66.7%. Given that English law was said to be ‘pro-relocation’, it is interesting to compare this figure with the equivalent data from Canada (68%) and New Zealand (68%), which are respectively ‘neutral’ and ‘anti-relocation’. Of course, court outcomes are not the whole story because pre-litigation advice is an important filter, but the similarity is noteworthy.

We then go on to identify factors which appear to be important in influencing case outcomes, which we divide into three broad groups. The first group relates to courts, judges and lawyers. The data suggest that courts in London and on the South East (1) Circuit are more likely to refuse relocation applications than courts elsewhere in England and Wales (around 62%, compared with 85%). There is also a difference based on the type of judge hearing the case, but the data suggest that this difference may be accounted for by case allocation: different judges hear different types of international relocation case. While most cases involved both applicants and respondents with legal representation, the data suggest that if one side does not have a lawyer then his or her chances of getting the desired outcome are substantially reduced (though this is correlation, not causation).

The second group of factors focuses on families and their biographical characteristics. In terms of children’s care arrangements, the overall picture suggested by the data is that applications where the respondent parent does not have overnight staying contact with the child are more likely to be allowed (around 75%) than cases which do involve staying contact (around 55%); but the amount of staying contact (whether amounting to shared care or not) does not make a significant difference. There is some suggestion from the data that cases involving multiple children are less likely to be allowed than cases involving a single child, but the small number of cases with several children makes it impossible to be sure of any pattern. In the international cases, the ages of the children made no apparent difference to case outcomes. In terms of the parents’ relationship statuses, we saw that the parents’ previous relationship with each other made no difference to case outcomes, and the same was true of the respondent parent’s current relationship status; but applicants who were now married had a significantly higher chance of their relocation application being approved than did applicants who were single (just over 80% for those who were married, compared with 50% for those who were single).

The third group of considerations looked at proposed destinations and the applicant parents’ motivations for seeking to relocate. The overall picture in terms of destinations seems to be that the shorter the proposed move, the more likely it is that the relocation will be allowed – so moves within the EU are allowed more often than moves to North America, which are in turn allowed more often than moves to Australia or New Zealand (in the CC data, 80%, 71% and 52% respectively). Consistently with previous research, we see that most applicants have several reasons for seeking to relocate, but we focus on four key groups: ‘going home’, ‘new job’, ‘lifestyle’ and ‘other’. The findings here are not straightforward, but the overall picture seems to be that cases involving a return home or a specific job offer have a greater than average chance of being allowed (72% and 70% respectively), while those seen as lifestyle decisions are significantly less likely to be allowed (48%). Most opposition to relocation applications was based on the child’s loss of relationship with the respondent parent; but in those cases where the respondent argued that the proposed move was poorly planned or that it was brought in bad faith, the application was less likely to be allowed (56% and 50% respectively).

Part 5 | Domestic Relocation Disputes: Outcomes and Patterns
The overall success rate for litigated domestic relocation cases in the combined sample (N=37) was 70.3%. Given that orders restricting internal relocation are thought to be unusual, it may be surprising that this figure was so similar to that for international relocation (66.7%). However, it should be remembered that many internal relocation cases will not be litigated, so the range of cases before the courts may be different in the two contexts.

Starting again with issues relating to courts, judges and lawyers, the data suggest that courts in London and on the SE-1 circuit may be more inclined to allow internal relocation applications than courts elsewhere – the reverse of the pattern seen in the international data – though this variation may be explained by case characteristics. A finding more in keeping with the international data is that District Judges seem to be more inclined to prevent domestic relocations than are Circuit Judges.

Looking at families and their biographical characteristics, similar patterns are seen as emerged from the international data. Children’s pre-relocation care arrangements appear strongly correlated with case outcome, with the proportion of relocations allowed increasing as the non-moving parent’s involvement in the child’s daily life decreases. In terms of children’s ages, cases where relocation was allowed had a lower mean age of child (7.0 years) compared with cases that were refused (8.3 years), though it is unclear why that would be the case.

Rather than proposed destinations, the focus in the domestic data is on distances of the proposed move. The data show that shorter moves (two hours or less) are less likely to be allowed than longer moves (61.1%, compared with 78.9%). Again, it is unclear why that should be the case, given that on-going contact will be easier to maintain after a shorter move. In terms of reasons for seeking or opposing domestic relocation, the data are equivocal about whether motivation makes much difference. No observed differences were close to being statistically significant, and the differences were in any case marginal.

Part 6 | Discussion and On-Going Work
The statistical data have revealed a wealth of findings, but have also raised many questions. The next stage of analysis will return to the judgments and look qualitatively at judicial reasoning. After that, the project turns to parental experiences. Parents in 30 relocation cases have been interviewed about their experiences, and those interviews will be analysed and the conclusions added to the overall project. 

10 comments:

  1. Dear Dr George

    "Of course, court outcomes are not the whole story because pre-litigation advice is an important filter..."

    I agree. A significant percentage of relocation cases are excluded from your investigation because:

    a) the respondent has neither the financial means nor the mental resolve to challenge a relocation in the courts.

    b) the respondent has been (very well) advised not to challenge an application on the basis that the chances of his success were slim.

    The real 'success rate' for relocation applications is therefore likely to be significantly higher than the figures you have quoted.

    In your study, did you consider the well-established arguments against Payne v Payne?

    They are listed here: http://www.equalparentingalliance.org/2011/04/leave-to-remove-an-open-letter-from-father-of-re-d.html

    Did you consider the political involvement of Lord McNally, the Minister responsible for relocation law, which arguably resulted in the ground-breaking relocation judgement of Re K (Children) [2011] EWCA Civ 793 in 2011?

    For Lord McNally's involvement, see: http://www.mckenziefriend.com/2010/04/27/your-numbers-up-payne-v-payne-time-for-change/

    Best Regards
    Bruno Ditri

    ReplyDelete
  2. Dear Mr Ditri,

    Thanks for your comments. The full paper, which I hope to release this coming week, has a little more discussion of this issue.

    The research leading to this report has two parts – (1) court judgments and (2) information from lawyers. The point of (2) is, in part, to see how many cases lawyers advised about but which did not get to court for one reason or another. That is partly designed to address the concern that court outcomes are only part of the story – but you’re quite right that it misses the cases which don’t even involve a lawyer.

    Those cases, entirely outside the law’s view, are difficult from a research perspective. It is very hard to know how many of them there are, and very hard to find them. I suspect (and discuss a bit in the paper) that in the context of internal relocation, the vast majority of cases never get near the court; many simply take place without any warning or discussion, and others are agreed (for want of a better term) privately. International cases also no doubt occur outside the law's view, but my guess is that the numbers are smaller. International moves are more straightforward to contest (because the law makes clear, at the least, the unilateral moves are not permitted, and provides remedies - child abduction provisions - to counter attempted or actual unilateral moves), but also it is easier to see (for non-lawyers) that there might be legal complexities to moving internationally and so legal advice is more often sought.

    Part of the issue with relocation law a few years ago (and I suspect still today) was that most people thought that trial courts virtually always allowed relocation applications. A number of things have happened in the last few years – Lord McNally’s involvement, the changing of the guard of senior judges, a couple of influential cases (like K v K, J v S, and Re AR), and some international discussions – that mean that things may have changed a little. This research is designed to tell us what’s happening now, in the courts and in lawyers’ offices. If we know what is happening, we can assess whether the advice that people receive and the general public’s information is an accurate reflection of the law or not. That helps people now to make better informed decisions about their own cases, and it helps more broadly when thinking about law reform.

    To finish up, two broader points. One is that this summary relates to just part of the overall project – I have also been interviewing parents who have been involved in relocation cases, getting their perspectives on this issue. I know that you know from your own experience how hard these cases are, and the final analysis from this study will include about 35 parents’ perspectives (about half and half mother and fathers, successful and unsuccessful in both groups). The second is just a point about what the research is for. As I say, the aim here is to find out what’s going on and so to inform the debate with better information. I’m no fan of Payne v Payne, and I’ve said a number of times that it’s not the way I would want relocation cases assessed; but this research doesn’t exactly address that question. It leads into that discussion, but it’s about improving the information available first so that we can move to debate the law’s approach from a more evidence-based position.

    Best wishes,
    Rob George.

    ReplyDelete
  3. Thank you for your very comprehensive reply, Dr George.
    I, for one, hope that your research does indeed assist in challenging the continued use of Payne v Payne.
    Best regards
    Bruno Ditri http://childrenandfamiliesbill.wordpress.com/

    ReplyDelete
  4. It's great that you are doing this research. It is great as well that the decisions seem to be moving. I hope that one day it is both socially and legally unacceptable to remove a child from either one of its parents.

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