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Child Care Solicitors

Relocation of Children (6 June 2011)

Date: 06/06/2011
Duncan Lewis, Child Care Solicitors, Relocation of Children

By Asieh Salehzehi

Relocation cases are heart-rending cases with drastic implications for the whole family. It is this that lies at the heart of the court's dilemma.

The Law in brief


Permission is needed from the court to take a child out of the UK in the following situations:
o Where the child is a ward of court;
o Where there is a residence order in force and removal will be for more than a month, arranged by the person holding the residence order, or everyone with parental responsibility consents, or permission was granted at the time of making the order;
o Where removal would constitute a criminal offence under the Child Abduction Act 1984.
In other words, if each parent shares parental responsibility, both must agree to the removal.

The court's approach


The principles which can be distilled from the case law are as follows:
o There is no presumption in favour of the applicant parent;
o The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight;
o The practicalities of the relocation proposals should be scrutinised with great care, including those of ensuring continued adequate contact with the other parent;
o The court needs to be satisfied that there is a genuine motivation for the move and not an intention to bring contact between the child(ren) and the other parent to an end;
o The effect upon the applicant parent and the new family of the child of a refusal of leave is very important;
o The effect upon the child of the denial of contact with the other parent and in some cases the wider family is very important and will require the court to analyse the current contribution of the non-resident parent and wider family to the care of the child;
o The opportunity for continuing contact between the child and the parent left behind may be very significant;
o The child's welfare is paramount but in assessing the relocation application, all relevant aspects of the welfare checklist must be analysed including, where appropriate, the wishes and feelings of the child(ren);
o The court should first consider with which parent the child should live, taking account of the plans of each parent as to where the family should live.

Most of these propositions are highlighted in the leading case of Payne v Payne but there are some cases where the court has agreed that the strict Payne approach cannot be applied. These include, for example, applications for temporary removal, applications for internal relocation.

Payne v Payne [2001] EWCA Civ 166 is a well known case. The case concerned an application for leave to remove a child aged 2 to New Zealand. Thorpe LJ said;

"To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion".

This decision also involved an application to relocate to New Zealand by a mother and permission was granted at first instance and upheld on appeal.

Following Payne, considerations should be in the forefront of the mind of a judge trying one of these difficult cases:
(a) The welfare of the child is always paramount.
(b) There is no presumption created by s 13(1)(b) in favour of the applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently, the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

In Re D (Children) however Lord Justice Wall has stated that there is a perfectly reasonable argument for the proposition that the Court of Appeal judgment in Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent.

In his judgment in Re D (Children), Lord Justice Wall commented:

‘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 of children by a permanent breach of the relationship which children have with the left behind parent.’

Meanwhile in Re W (Children) [2009] counsel for the mother argued that the trial judge had not fully analysed the effect on the mother, had not sufficiently considered the wishes of the children (one of whom was now eleven), and had been wrong to find that there was a history of contact problems. Wall LJ rejected those submissions, having reviewed the judgment, and concluded that the trial judge having heard the evidence and appropriate authorities was fully entitled to refuse permission to relocate.

However in the most recent case of Re W (Children) [2011] which again concerned a mother's appeal against the refusal of her application for permission to relocate to Australia with her children, the Appeal Judge granted the mother's appeal and gave permission for the children to be removed to Australia.

At the appeal, the Appeal Judge held that the balancing exercise when considering what was in the children's best interests had not been properly undertaken. The mother's motivation was unimpeachable and the plans were clearly in the best interests of the children. Whilst the Court was correct to consider the loss of the father's newly gained relationship with the children, the balance of factors still weighed heavily in favour of the mother.

Conclusion:


The courts have engaged in a war between prioritisation between the Children Act 1989 and the Principles of Payne. The court has continuously observed the Childs welfare as paramount but there has been a vibrant and incoherent approach to these applications and the courts approach remain extremely case specific.


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