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origin, and to take with her the child from the relationship who has been born in the home State of the other parent, and is a citizen of that country. They argue that such relationships should not be entered into lightly and that there should be an understanding that, in the event of relationship breakdown in these circumstances, the presumption should be in favour of the child remaining in the jurisdiction of his/her birth. The willingness of the Courts to allow relocation in these cases was seen by these fathers as judicial encouragement to the acceptability of such expectations. If both parties understood at the outset that leave to remove the child permanently from the jurisdiction was unlikely to be given before the child reached his/her majority, these parents suggest that the parent wishing to return home would be less likely to abduct the child believing, as may currently be the case, that, even if returned by the Court of her home State, she would soon obtain legal permission to take the child. Whether this is true is open to debate but there is no question that it is an area which concerns many of the parents involved in these cases. 48

48 This debate centres on the best interests of the individual child. There is a tension between the desire to provide for and promote the free international movement of people and the desire not to stand in the way of the legitimate motives of well intentioned primary carer parents to move their lives forward, which may involve emigration, with the need to maintain contact with the child’s non primary carer parent who remains in the jurisdiction in which the child was living before a separation. The test in the Revised Brussels 11 Regulation is one of habitual residence which is also the “baseline” for relocation, rather than nationality or country of birth. The facts will be different in every case relating to international relocation. If presumptions against relocation, such as those proposed above, were applied, it may, conversely to that suggested, actually tend to increase the risk of international child abduction as the parent wishing to return home may abduct the child simply because she felt she had nothing to lose, being unable to obtain legally what she desired from the State of habitual residence. Similarly, if a presumption in favour of relocation were applied, it could equally tend to increase the risk as the parent opposing relocation might feel that he had nothing to lose by abducting as the custodial mother would inevitably get leave to remove. The guiding principle must be the best interests of the individual child.


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