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Many jurisdictions have a highly discretionary 'best interests of the child' test to decide parental relocation. Application of this test is difficult for judges and unpredictable for litigants, making settlement of relocation cases difficult and hindering planning by parents. Some jurisdictions have presumptive approaches to relocation, placing an onus on the parent opposing, or alternatively favouring, relocation, to justify this decision. A 'one size fits all presumption' is crude and fail to meet the interests of children. There should be relocation presumptions, but they need to be nuanced. Appellate courts, legislatures and international treaties are reluctant to establish relocation presumptions. Building on the 2010 Washington and London Resolutions, family jurists should develop International Relocation Advisory Guidelines (IRAGs). The IRAGs be consistent with existing patterns of judicial decision-making, legal policy and the limited reliable social science knowledge about relocation, with presumptions for or against relocation depending on such factors as the amount of care that each parent provides for a child, domestic violence and the views of the child. Resolutions concerning the IRAGs should adopted by a future International Family Justice Conference and have persuasive value in jurisdictions with a discretionary best interests approach to relocation.
By Professor Nicholas Bala, Queen's University, Canada
The full version of this article appears in the March 2013 issue of International Family Law.
Provides comprehensive coverage of the international elements of English family law