Removal from the Jurisdiction

 

This article first appeared in FNF's newsletter McKenzie #39 (February 1999)

Overriding all else, under the Children Act 1989 section 1(1) the welfare of the child is supposed to be the paramount consideration, and the courts should be concerned with the interests of the mother and father only insofar as they bear upon the welfare of the child.

Furthermore, the Children Act 1989 Guidance and Regulations, Vol 1 - Court Orders, issued by HMSO, clearly states (section 1.5):

"The Children Act rests on the belief that children are generally best looked after within the family with both parents playing a full part and without resort to legal proceedings."

This point is re-emphasised on page 10 with the statement:

"the intention is that both parents should feel that they have a continuing role to play in relation to their children."

It may therefore come as a surprise to many that the leading authority concerning the removal of children from the jurisdiction, Poel v Poel [1970] 1 WLR 1469, dates back over a quarter of a century and is still binding in post Children Act cases today.

Those familiar with the case will recall that in his judgement Sachs LJ said

"the way in which the parent who properly has custody of a child may choose in a reasonable manner to order his other way of life is one of those things the parent who has not been given custody may well have to bear".

All very well, but what about the child? Are we not relegating his/her status to some form of marital baggage which has to be given to one or other of the parents involved following a divorce?

The Law Commission based their recommendations in their report to Parliament on the fundamental principle that "changes in the child's residence should interfere as little as possible with his relationship to both parents". (Law Commission 172 4.16).

Most recent research conducted on the effect of divorce on children, concludes that those children who suffer least are those who are able to maintain a close and continuous relationship with both parents. I strongly believe that the best parent is not the mother nor the father but both parents.

How on earth can it be said that taking a child to another part of the world is in the child's best interest since in all probability his/her contact with the non-residential parent, will be severely curtailed?

Well wait for it....the mother may become distressed if she cannot have her own way and may take it out on the child. Poel v Poel again!

Or as Sachs LJ put it perhaps more eloquently,

"Regard has to be made to the welfare of the parent who has custody since if he or she became unhappy, it might adversely affect the child and therefore, there should be no interference within any reasonable mode of life selected by the parent having custody, unless it was absolutely essential."

This statement would appear to be in direct conflict with the basic principles of the Children Act 1989. It also revolves around the belief (mistaken in my view) that 'happy mother equals happy child'. The assumption that this view is based upon is that the child's emotional needs are the same as the mother's. Surely the court should be putting the child's needs at the heart of the matter. If it is accepted that the child needs a close and continuous relationship with both parents, the fundamental question should be 'where best can this happen' - in the country where the child currently lives (with easy access to both parents), or abroad?

Instead, it seems to be that the courts tend to focus on whether it is reasonable for the residential parent, usually the mother, to emigrate and leave the non-residential parent to overturn the presumption in favour of the other, in order to prevent the removal of the child from the jurisdiction.

While Poel v Poel still remains the leading authority on these matters there have been a number of post Children Act 1989 cases concerning the removal of children from the jurisdiction in recent years. Mr Justice Thorpe's judgement in MH v GP (Child: Emigration) [1995] 2 FLR 106 FD does give parents facing these applications a little ray of hope when he says that 'Parenting is very demanding and often requires considerable self sacrifice'. But until Poel v Poel is overturned, parents trying to prevent such applications will have little joy in the courts.

 

David Hickman
February 1999