• Moving Abroad: Should Parents Be On an Equal Footing?
  • April 20, 2010
  • Law Firm: Withers Bergman LLP/Withers LLP - New Haven Office
  • 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.