In this increasingly global world, many families relocate but
following the breakdown of a marriage the desire of one parent to
move abroad can be a cause of an emotional and legal tug of war.
Unless all persons with Parental Responsibility (in the vast
majority of cases this will only be the parents) agree in writing
to the relocation, leave of the Court to remove a child permanently
from the jurisdiction of England and Wales will be required.
Most reported cases relate to mothers who are the primary carers of
the child. However, as families become increasingly flexible and
fathers take on more of a hands on role in the upbringing of the
child, this may change. A report by the Custody Minefield of
December 2009 encourages such a change and a recent Court of Appeal
case Re D (2010) acknowledges that there has been considerable
criticism of the leading case law which is widely seen as weighted
in favour of relocating mothers.
An application for leave to remove is governed by the 'welfare
of the child' principle enshrined in the Children Act 1989. The
welfare checklist contains factors such as the ability of the
parents to meet the needs of the child, the likely effect on the
child of a change in circumstances, his physical, emotional and
educational needs, and depending on his age any wishes the child
expresses.
The leading authority is a Court of Appeal case of 2001: Payne v
Payne ('Payne') which has provided the framework for
deciding subsequent cases. In Payne, the Court confirmed that the
welfare of the child is always paramount. The Court has to balance
whether the application and/or refusal are genuine - is the move
motivated by some selfish desire to exclude the other parent from
the child's life? Is the refusal by the left behind parent
driven by an ulterior motive?
The Court then considers whether the application is realistic. The
relocation proposals must address this comprehensively. This is
where sensible and detailed planning is required. The Court will
consider the reasons for the move, where will the child be living,
what school they will attend? What support networks will the parent
and child have? In the case of a relocation because of a new
partner, the proposal should take into account the life the
applicant will have with the new partner. Can the parent and child
speak the language of the new country? Contact proposals must be
factored in with the logistical and financial aspects to ensure
contact is maintained between the child and the 'left
behind' parent. Failure to deal adequately with any of these
aspects could easily result in the failure of the
application.
The Court also considers what would be the extent of the detriment
to the child and its future relationship with the 'left
behind' parent if the application was granted; how the
child's relationships with the 'left behind'
parent's family and homeland will be affected; and also,
importantly, the Court considers the impact of a refusal on the
applicant either as a single parent or as a new spouse.
Although the Court in Payne asserted that there was no legal
presumption, the practical effect of that judgment means the onus
is on the 'left-behind parent' to show that the
applicant's plans are unreasonable. Case law since then has
operated on the presumption that there is a primary carer with whom
the child will live after separation and has prioritised the
emotional and psychological wellbeing of that primary carer. As
fathers become more hands-on in the day to day care, some would say
the factors in Payne no longer accord with modern views of the
dynamics of family life and the importance of co-parenting.
In his recent Judgment in Re D (Children), reported in February
2010, Lord Justice Wall expressed judicial view that the Payne
principles are ripe for review: "There has been considerable
criticism of Payne v Payne in certain quarters, and there is a
perfectly respectable argument for the proposition that it places
too great an emphasis on the wishes and feelings of the relocating
parent, and ignores or relegates the harm done to children by a
permanent breach of the relationship which children have with the
'left behind' parent." However, Lord Justice Wall did
not feel that this particular case was the 'right one' to
pursue this argument, and refused the father permission to appeal
the decision that the mother be allowed to remove the children to
Slovakia.
If the non-resident parent is concerned about the possibility of a
leave to remove application he/she should spend as much time as
possible with the child and where possible should attempt to reach
an agreement about shared care or possibly apply for a shared
residence order so as to consolidate the existing relationship with
the child.
Leave to remove cases are an exercise in judicial discretion, often finely balanced, and each turning on its own facts following a careful weighing of evidence. Until the 'right case' forces a review, County Court and High Court Judges are duty bound to follow the Court of Appeal in Payne and as Lord Justice Wall acknowledged in Re D, the principles and guidelines laid down in that case can only be altered by legislation or overruled by a decision of the Supreme Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.