A Comparative Overview Of Child Relocation
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Yael Selig
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15th Anniversary of the Washington Declaration on International Relocation
This year marks the 15th anniversary of the Washington Declaration on International Relocation, a landmark instrument that has significantly influenced the legal framework governing cross-border child relocation. The Declaration established key principles aimed at balancing the custodial rights of parents with the paramount consideration of the child’s best interests. Over the past decade and a half, courts worldwide have increasingly relied on these principles to assess relocation cases, ensuring that decisions reflect a comprehensive evaluation of familial, psychological, and legal factors.
However, despite its relevance, the Washington Declaration remains relatively unknown to Judges and Courts in many jurisdictions. This lack of awareness often leads to inconsistent application of relocation principles, creating legal uncertainty for parents and children involved in international custody disputes. Greater efforts are needed to promote the recognition and implementation of this instrument in judicial decision-making.
A significant step forward would be the establishment of practical guidelines that could serve as a reference for courts across all jurisdictions. These guidelines would help harmonize legal criteria, ensuring more predictable and fair decisions in relocation cases. Standardized criteria could enhance judicial cooperation, provide clarity for legal professionals, and ultimately safeguard the rights and well-being of children affected by international relocation.
International child relocation, known as relocation (or ‘leave to remove’ applications in England and Wales), poses significant legal and emotional challenges for families, particularly in shared custody situations after separation. This article analyzes the approach taken by the court of England & Wales and Spain regarding this phenomenon, as well as the global concerns and practical cases in both jurisdictions.
International Child Relocation: A Comparative Perspective Between England & Wales and Spain
I. Relocation in Spain: Custody and Fundamental Rights
The principle of the “best interests of the child” is the central axis in any judicial decision related to international child relocation. This principle is highlighted both in Spanish law and in numerous international instruments ratified by Spain.
It is a principle that requires all decisions affecting a child to prioritize what is most beneficial for their physical, emotional, and social well-being. The goal is to protect the child and ensure their development is as healthy and balanced as possible, considering their needs and rights.
Similarly, applications to the court of England & Wales for leave to remove a child from the jurisdiction are determined on welfare principles alone, as the child’s welfare is the paramount consideration.
Factors to Consider
When assessing the best interests of the child in a relocation case, Spanish courts usually consider several factors, among others:
1. The child’s relationship with both parents: The Spanish court evaluates the emotional bond and the degree of attachment between the child and both parents, as well as with siblings and other close relatives.
a) The child’s emotional stability: The Spanish court analyzes how the relocation might affect the child’s emotional stability, considering factors such as their adjustment to their current environment, school performance, and social network.
b) The child’s ability to adapt to the new environment: The Spanish court assesses the child’s ability to adapt to the new country, including culture, language, the educational and healthcare systems, and opportunities for personal and social development.
c) Living conditions in the new country: The Spanish court considers the material and well-being conditions that the child would have in the destination country, including housing, access to education, and healthcare.
d) Proposed contact with the left-behind parent: It is crucial to present a detailed plan that allows for the continued and meaningful relationship between the child and the left-behind parent, including regular visits and constant communication and stays.
e) Child´’s voice: Depending on the child’s age and maturity, their opinion will be taken into account. The child’s capacity to express their will and understand the implications of the relocation are key elements in the evaluation when the children have enough mature.
The court of England and Wales will evaluate where the child’s interests lie, and this will be determined by the statutory welfare checklist under section 1(3) of the Children Act 1989. This includes:
a) The child’s ascertainable wishes and feelings: similar to the Spanish court, the court of England and Wales will consider the child’s opinion, in light of their age and understanding of the situation;
b) The child’s physical, emotional and educational needs: the court will consider which parent will best meet the child’s physical needs, the effect of the relocation on the child’s relationship with both parents and the disruption to the child’s schooling;
c) The likely effect on the child of any changes of circumstances: the court will consider the impact on the child’s welfare. For example, the court will consider which parent has historically been the child’s main carer and the prevailing child care arrangements (i.e., what these would be if not for the question of relocation);
d) The child’s age, sex, background and any characteristics which the court considers relevant;
e) Any harm which the child has suffered or is at risk of suffering: for example, whether there has been any physical, psychological and/or emotional harm, and how this might affect the relocation ;and
f) How capable the child’s parents, and any other relevant person, are to meet the child’s needs: this is similar to (b). The court might consider how the suggestion of relocating would disrupt the child’s time with the remaining parent, and whether the relocating parent therefore understands the child’s needs.
The court will also consider:
- The proposals of the applicant, for example where they would live and which new school the child would attend. There is often less scrutiny in cases in which the applicant is returning to their home country/ country of origin;
- The motives of both the applicant and the respondent – i.e., whether their positions are child-centred or to exclude the other parent;
- The impact of the relocation on the remaining parent and their extended family, balanced against the benefits of the child’s contact with the applicant’s extended family in cases where the applicant is applying to relocate to their home country;
- he impact on the applicant of the application being refused, or on the respondent of the order being granted, insofar as this affects the child.
The court of England & Wales will undertake a global holistic evaluation, examining in detail the positives and negatives and comparing the competing options.
Case Law in Spain on International Child Relocation
Spanish jurisprudence has addressed numerous cases of international child relocation, each with its particularities. Below is an analysis of some common situations and the resolutions adopted by the courts.
Common reasons:
1) Immigration status
2) Remarriage
3) Employment prospects
4) Closer to family
5) Cost of living
6) Removal from abuse or violence
7) Education
8) Medical needs
9) Return to home country
10) Military postings
11) Regional conflict
Practical Considerations for Parents
For parents considering applying for international relocation with a child, it is crucial to take several practical aspects into account:
a. Preparation of a Detailed Plan.-
b. Gather Documentary Evidence.-
c. Communication and Negotiation.-
d. Evaluation of the New Country’s Environment.-
e. Consideration of the Child’s Stability.-
f. Consideration of the Child’s wishes and feelings.
The Identity of Children in International Relocation: A Legal and Cultural dilemma
The issue of child identity in international relocation has gained increasing relevance in legal and psychological discussions. The movement of a child across borders not only affects their immediate environment but also poses a challenge to their sense of self, cultural ties, and national belonging. One of the central debates at the 2025 Washington Conference on the 15th Anniversary of the Washington Declaration on International Relocation focused precisely on this dilemma: whether international relocation jeopardizes a child’s identity or, on the contrary, aligns with the reality of their multicultural upbringing.
The Dilemma: Preserving Identity vs. Embracing Multiculturalism At the heart of the debate lies a fundamental dichotomy:
1. The Risk of Identity Erosion: When a child is relocated to a different country, they may experience a disruption in their linguistic, cultural, and familial connections. Courts must consider whether such a move could result in an identity crisis, detaching the child from their heritage, customs, and community. This perspective emphasizes that a child’s identity is deeply rooted in their country of birth and early childhood experiences, making abrupt relocations potentially harmful to their psychological stability.
2. The Multicultural Perspective: In contrast, many legal and psychological experts argue that today’s children are increasingly multicultural by nature, adapting to multiple cultural influences from an early age. In such cases, international relocation does not necessarily threaten their identity but rather enriches it. Many children of international families grow up with multiple languages, dual nationalities, and exposure to various cultural settings, allowing them to develop a fluid and adaptable identity. Under this approach, relocation should not be viewed as an identity loss but as an opportunity for cultural expansion.
3. Legal Considerations in Relocation Cases: When courts assess international relocation cases, the child’s right to identity should be a central consideration. The United Nations Convention on the Rights of the Child (UNCRC) recognizes identity as a fundamental right (Article 8), emphasizing the need to protect a child’s nationality, name, and family relations.
Judicial systems in different countries have approached this matter with varying criteria:
- Some jurisdictions prioritize continuity, ensuring that a child remains in an environment where their cultural and national identity is preserved.
- Others adopt a flexible approach, considering the adaptability of children and the potential benefits of cross-cultural exposure.
The court of England and Wales will adopt a flexible approach, and each case will be decided on its own facts, based on an evaluation of the statutory checklist under section 1(3) of the Children Act 1989.
The Washington Conference 2025 highlighted the necessity of establishing international guidelines to ensure that courts integrate a balanced approach— one that acknowledges both the importance of identity preservation and the benefits of a multicultural upbringing.
Conclusion
The establishment of international practical guidelines for judicial decision- making in relocation cases would greatly assist courts in achieving a fair and consistent approach. By recognizing both the risks and opportunities associated with relocation, legal systems can better protect children’s well-being and foster a legal framework that embraces the realities of an increasingly globalized world.
International child relocation requires a delicate balance between parental rights.
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