The Shackled Parent? Disputes over Relocation by Separating Parents – Is there a need for Statutory Guidelines?
Authors Brigitte Clark
Affiliations: Senior Lecturer, School of Law, Oxford Brookes University
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 80 – 115
This article focuses on the problems confronting a variety of jurisdictions when one parent wishes to relocate internationally with the children after divorce or separation and, as a result, the parent ‘left behind’will be deprived of access to/contact with his or her children. The article examines relocation in the context not only of its frequently gendered nature, but also of the inconclusive and controversial social-science research about its effects on children. As a result of this examination, the article suggests that national statutory guidance should be drafted, directing the courts to consider (inter alia) the wishes and feelings of the children; the current care-giving responsibilities; the relocating parent’s reasons for wishing to relocate; the non-relocating parent’s reasons for opposing the relocation; and the presence of any domestic violence. An internationally collaborative strategy leading to the establishment of national statutory guidance would appear to be the most effective way in which the law can operate in this area. This would strengthen the impact of the provisions of the United Nations Convention on the Rights of the Child, and greater legal certainty could be achieved by the framing of such guidelines, whilst preserving the ultimate discretionary power of the courts to act in the child’s best interests.