Lisa Pepper, partner specialising in family, divorce and collaborative law  discusses a decision of the Court of Appeal in July 2011 that has set a new precedent in cases where, after a couple has separated, one party applies to Court for permission to relocate abroad with the children, the other party refusing to agree.  Such cases are commonly called “Leave to Remove.”

The ‘Welfare Checklist’ in the Children Act 1989 remains the paramount consideration for the Court on the matters to be considered:

• The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
• Their  physical, emotional and educational needs;
• The likely effect on the child of any change in his circumstances;
• Their age, sex, background and any characteristics of his which the court considers relevant;
• Any harm which  they have suffered or are at risk of suffering;
• How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;
• The range of powers available to the court under the Act in the proceedings in question.

Clarification in Payne 2011

The leading case has been that of Payne in 2001.  The Court of Appeal in that case said that the Court should consider the following when deciding whether to give permission to a parent to move abroad:

1. "Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life. Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
2. If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
3. What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
4. The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.”

That was proposed by the President of the Family Division, Lord Justice Thorpe, and has been followed thereafter.  The focus has often therefore been on whether the Mother’s plans were well thought out, and the effect on her if a refusal was made.  If she had all her “ducks in a row” in terms of her plans in the other country (schools, job, family support network, etc.), had always supported the father’s contact with the children, could show plans for him continuing to be in contact with the children regularly and generous holidays, and was able to persuade the court in her evidence that the effect of a refusal on her would be devastating (and thus would have a detrimental effect on the child); more often than not she was allowed to go.

New Case law

In the case of MK v CK this year however, Thorpe and two other Judges in the Supreme Court, looked at this again.  The Mother wanted to move with their two daughters, aged 2 and 4, to Canada where she was from (but having lived here since 2003).  In this case, there was a Shared Residence Order and the parents had the children roughly 40% (father) and 60% (mother) of the time. Both parents were lucky enough to only work part-time.  The father had persuaded his employers to allow him to fit two full working weeks into 7 days, and therefore had the children for 6 days on the run (5 nights). 

The Supreme Court took this opportunity to “swing the pendulum back” towards, what is usually the father fighting for his children to remain here.  The Court said that lower Courts must stay focused on “the Welfare Checklist” and said where one parent isn’t the primary carer and care between the parents is shared (and note in this case it wasn’t 50/50) the guidance in Payne should not be applied, and they refused the Mother’s Application. 

Where therefore a couple are both very “hands on” parents and share the care of the children, it will now be more difficult for one of them to persuade a Court that they should be given permission to relocate with the children, if the other parent objects. 

More and more families are born of international relationships now that the world is so much smaller.  I expect that when a couple splits up, there will be more early battles about shared care and Residence Orders, if one parent fears the other may at some stage want to relocate.  Clients should not forget however that the Court takes the view that they should explore mediation or collaborative law before they start Court proceedings. 

If you would like further advice on leave to remove or any other family law issue including divorce law please contact Lisa Pepper on 020 7485 8811  or e-mail Lisa. Alternatively you can fill in our online form.

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