Landmark court ruling may prevent expats from taking children 'home'

The case, reported in the Telegraph, concerned a Canadian divorcee who had been living in the UK with her former husband and two children. The woman wished to return to her native Canada after her divorce, and take her young children, aged two and four, with her. The mother complained of feeling 'lonely' and 'isolated' in Britain. She applied to the court for permission to take the children with her and was initially successful. However, her former husband, and father to the children appealed and the Court of Appeal struck the first ruling down. It did this on the basis that the father had been playing a 'major role' in the lives of the children since the couple had separated, seven months before the divorce. The father looked after the children for two nights per week (35% of the time, as the Telegraph point out).

The court held that the harm caused to the children's wellbeing by the reduction in contact with their father, outweighed the distress the mother would suffer if her application were refused.

The implications of this case may be significant. For one, the focus of the court is no longer on the primary carer – the rights of the second parent (most often the father) are now taken into account to a greater extent. Whereas previously the Court held that detriment to the mother was directly detrimental to the children now it is estrangement from both parents that is likely to be considered. The Court also urged the divorced couple to work together on a long-term plan for care of the children including, possibly, a return to Canada at some stage.

If you are in this situation, or you fear you may be one day, you should seek advice at as early a stage as possible. Contact us for confidential advice.