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(Family Division; Mostyn J; 10 June 2010)
In refusing the mother permission to relocate to France with her child on the grounds of the child’s welfare, Mostyn J reviewed the current law and made some interesting observations and comments. He considered the Washington Declaration on International Family Relocation was a significant new development which supplies a more balanced, neutral and non-presumptive approach to a relocation application, as is the norm in many other jurisdictions. Attributing great weight to the impact of a refusal on the parent seeking to relocate “appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions”. The emotional impact of the refusal of an order is not a factor in the welfare checklist. Mostyn J calls for an urgent review of the Poel/Payne criteria by the Supreme Court.
In making a shared residence order Mostyn commented that “such an order is nowadays the rule rather than the exception even where the quantum of care undertaken by each parent is decidedly unequal. There is very good reason why such orders should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order.”
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