Lanteigne, GM; (2015) The Best Interests of the Child in Relocation Disputes: England and Wales, and Canada. Doctoral thesis , UCL (University College London).

Abstract

This research project investigates issues arising with regard to ‘the best interests of the child’ in resolving family relocation disputes through courts or settlement in England and Wales, and in Canada. Social science and socio-legal findings, statutes, and leading cases which form the normative background to decisions in this field are reviewed. The main line of enquiry is through a qualitative and comparative study with lawyers and ADR practitioners working with disputing parents. Findings from lawyers’ interviews support findings in other studies: adversarial proceedings, although leading to a resolution are emotionally and financially demanding, and risk exacerbating conflicts with a possible knock-on effect on children. Although ADR such as mediation is presented as an option, litigation is almost inevitable due to parents’ polarised positions. ADR practitioners mention challenges with these disputes due to the distance between parents on the issue of relocation. A majority of mediators report taking a pro-active approach. ADR models incorporating such an approach are reviewed. A secondary line of inquiry is through a comparative case analysis of appellate decisions in the same jurisdictions. Broad-based and open-ended multifactorial court guidelines now operate in England and Wales while in Canada such an approach has been the norm for nearly 20 years. Analyses of provincial appellate cases in Canada reveal variation in approaches on some factors in the Supreme Court of Canada guidelines. This is in line with Canadian critiques which point to the lack of predictability in court decisions. A review of questions and presumptions as guidelines lists advantages of the latter within a statute such as currently exists in British Columbia. A relational approach to the best interests principle is also discussed. It is argued that to support the best interests of the child, both process and substantive law need to be considered in deciding relocation disputes.

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