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Leave to Remove Case Law

Leave to Remove Case Law

Permission to remove the children from the jurisdiction out to be sought where the father has an application pending before the court.

The impact on the primary carer of the refusal of their application to emigrate with the children was given ´great weight´ in the belief that refusal would cause the parent such psychological harm as to impact on their ability to care for the children. No evidence is provided (previously or subsequently to support that belief). Payne v Payne provides guidance for judiciary to consider in cases where there is a primary carer. Where care is shared between the parents, the courts should instead refer to the guidance set out in Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330.

The applicant parent must satisfy two hurdles before the rest of their application is considered, that their plans are thought through and their motives are reasonable.

Until July 2011, the courts were considered ´bound´ to follow the guidance within Payne v Payne, however in the case Re K (Children) [2011] EWCA Civ 793, the Court of Appeal ruled that the only point of law from Payne was that the children´s best interests must be the court´s paramount consideration.

Read the full text of the judgment and/or download: No Link Provided

If there is a residence order in force, there is no need for a primary carer to seek the court´s leave to remove from the jurisdiction for a relocation from England to Scotland as Scotland is part of the UK.

Where the mother is the sole holder of parental responsibility for the children, technically, the father´s permission need not be sought before removing the children abroad. However, in Re V it was held that permission to remove the children from the jurisdiction of the courts should be sought where the father is having regular contact with the child.

Where the mother is the sole holder of parental responsibility for the children, technically, the father´s permission need not be sought before removing the children abroad. However, in Re V it was held that permission to remove the children from the jurisdiction of the courts should be sought where the father is having regular contact with the child.

A shared residence order may be made, even when parents live considerable distance apart (in this case, England and Scotland) so long as the children divide their time between two homes (this does not mean the equal division of time). Parents living in separate countries does not prevent the granting of a shared residence order.

Read the full text of the judgment and/or download: No Link Provided

Where a refusal of an application for leave to remove would jeopardise the continuation of a new family unit, then that is likely to be contrary to the child´s welfare.

Where there is effectively shared residence, then the court is unlikely to give permission to one parent to emigrate with the child. (See also Re D (Leave to Remove: Shared Residence).

Read the full text of the judgment and/or download: No Link Provided

Where an English mother whose family originated in France applied for leave to move to live in France with the children, permission was refused because evidence was given from a psychiatrist that the mother was in need of therapy and her coping mechanism was to “fly”. The Court held that the mother did not have the emotional stability to establish a new life in another country. Her current plans had not been sufficiently or carefully considered and the children´s contact with the father would be adversely affected. The children would also see much less of both sets of grandparents.

The Argentinean mother´s appeal against the judge´s refusal of her application to relocate was allowed. The Judge at first instance had been wrong to refuse her application on the basis that she had not established that she would suffer psychiatric damage if her application was refused. The Judge had understated the impact of refusal on the mother and the children.

It was held that there is no difference in principal between a mother who wishes to move to another country for reasons of lifestyle, and a mother who wishes to relocate to her country of origin or for an employment opportunity. Great weight should be given to the emotional and psychological well-being of the primary carer of the children.

The mother´s application to remove the child to America was granted despite the children´s time having been previously equally divided between the parents´ homes (under a mediated shared care agreement). Parents living in different countries was not a bar to shared residence.

Thorpe LJ rejects the father´s appeal that the mother´s plans are not sufficiently thought through since the mother was returning to a place she was familiar with, and as such, the ´hurdles´ that she must satisfy are far lower.

https://www.bailii.org/ew/cases/EWCA/Civ/2007/1497.html

Thorpe LJ rejects counsel´s arguments that with the growth in co-parenting, the guidance in Payne v Payne is out-of-date and requires review, and does not accept that the lower courts misapply the guidance within Payne (granting great weight to the ´distress argument´ relating to the distress caused to the applicant should their application fail).

https://www.bailii.org/ew/cases/EWHC/Fam/2008/324.html

The parents´ willingness to promote contact between the child and the other parent was a significant factor in the court´s decision.

Read the full text of the judgment and/or download: No Link Provided

https://www.bailii.org/ew/cases/EWCA/Civ/2009/160.html

The Judge doubted that contact would be supported by the mother, given the history. The need to move to New Zealand to find work was questioned. There was no medical evidence to support that the mother would experience anything other than disappointment if her application was refused.

Consent for leave to remove had been given by the Spanish father, but withdrawn prior to the mother´s relocation with the children to the UK. The court returned the children to Spain. Consent must be clear, unequivocable and provable, and must not be withdrawn before the relocation takes place.

Lord Justice Wall accepted there to be a ´compelling´ argument for a review of Payne v Payne in the right case.

Mother´s appeal against denial of leave to remove was rejected. Mostyn J questions the guidance in Payne v Payne, calls for the urgent review of that guidance in the court of appeal. Essential reading in LTR case preparation.

The Judge doubted that contact would be supported by the mother, given the history. The need to move to New Zealand to find work was questioned. There was no medical evidence to support that the mother would experience anything other than disappointment if her application was refused.

Permission to appeal granted by the trial judge (with a seeming intention that Payne v Payne might be reviewed). Father´s appeal was rejected by the Court of Appeal. Reference was made to D (Children) and AR (A Child: Relocation) in the judgment, but the grounds for a review not fully understood (as presented to and commented on by Wall LJ in D (Children)).

Permission to appeal refused. Relocation to Australia. Judge was acting within discretion, in that while CAFCASS reports are often ordered, a welfare report is not a necessity. Child´s separation from older half-siblings was mitigated by half siblings being older and likely to leave home in the nearer future themselves. Child at age 5 was too young to express wishes and feelings of any significance. That the trial judge did not make an order for contact was not an appealable ground, as once the child leaves the country, the jurisdiction of the courts of England and Wales ends. Payne is binding on the courts, but described now as a ´controversial´ judgment.

Permission to adjourn the hearing to obtain expert evidence had been refused. The mother was worried about the father removing the child during a holiday, as he had previously threatened to leave the child with family members in the Cameroon. The mother’s case relied on guidance within Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084 that the court should obtain expert evidence on complexities of recovering a child from a non-Hague Convention country in the event that the child was retained abroad. Appeal allowed.

“…but the case of Re K demonstrates the importance, even in a case where the judge feels able to repose trust in the parent who will be taking the child on holiday, of considering what can be done if the child is not actually returned. It is only with that information that the court can decide on the magnitude of the risk of the child being kept irretrievably away from its other parent and from this country and determine whether it is in the child´’s best interests to take that risk.”

Read the full text of the judgment and/or download: No Link Provided

In this case, heard in the High Court by Mrs Justice Theis DBE, it is worth noting her judgment based on considerations set out in the Welfare Checklist (section 1(3) of The Children Act 1989) and her finding that relocation was not in the children´s best interests, despite accepting that her decision would be devastating to the mother who wished to emigrate with the children.

“65. Having carefully considered all the evidence and the welfare checklist I have come to the clear conclusion that the welfare of each of these children is met by the mother´s application being refused. I recognise that this will be devastating for the mother but I have come to this conclusion primarily based on the evidence that the children are thriving under the regime the parents have devised in this jurisdiction and the adverse impact on their time and relationship with their father if they did move to south USA. For the reasons set out above I do not believe it can be effectively replicated if the children move to south USA and that any different regime will not meet the children´s needs. With the welfare of these children as the lodestar by which I am guided I am satisfied that the move to south USA would not meet the welfare needs of these children, however disappointing that decision will be for the mother.”

Read the full text of the judgment and/or download: No Link Provided

The only point of law or legal principle to be extracted from Payne v. Payne is the paramountcy principle. There is “no doubt at all that the guidance in Payne is posited on the premise that the applicant is the primary carer”. Where care is shared, the courts should make reference to the guidance within Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330. Leave to remove cases should be decided upon the facts of the case, and the welfare of the child and statutory considerations as set out in s.1(3) of the Welfare Checklist within the Children Act 1989 must be the court´s paramount consideration.

Read the full text of the judgment and/or download: No Link Provided

Interesting and more unusual case, but the points more generally applicable come from paragraphs 37, 40 and 60, and specifically address any assumptions of loose ends from K v K about whether a case is a Payne v Payne type case (e.g. following the guidance raised in Payne v Payne), or a Re Y type of case.

37. There can be no presumptions in a case governed by section 1 of the Children Act 1989. From beginning to end the child´s welfare is paramount, and the evaluation of where the child´s best interests truly lie is to be determined having regard to the ´welfare checklist´ in section 1(3).

49. In my judgment there was no error of law. Although this was not a case where the application was being made by the primary carer, Judge Marston was, for the reasons I have given, entitled to have regard to Thorpe LJ´s “discipline” as set out in Payne at paragraph [40]. He correctly appreciated that the case had to be decided by reference to P´s best interests. And, at the end of the day, that is precisely what Judge Marston did.

60. There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a ´primary carer´ nor a ´shared care´ case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, “the circumstances in which these difficult decisions have to be made vary infinitely.” This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a “Payne type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.

TCM Interpretation: The correct approach is to look at each case according to its specific facts, and use the criteria set out in the Welfare Checklist to determine what should happen for the child. Judicial discretion once again comes to the fore, rather than precedent or guidance.

Read the full text of the judgment and/or download: No Link Provided

The mother and child had returned to the UK from the US following Hague proceedings. The father applied for residence, the mother applied for leave to remove and residence. The judge did not believe the mother would support contact and found that the parents had insufficient funds to sustain contact. The judge refused the mother´s application for leave to remove and made a shared residence order. The child´s welfare required a relationship with both parents.

Also worth noting is the discourse on the difference between a legal principle and guidance, and his summary on this point at paragraph 9:

“9. In summary the law is clear:

the child´s welfare is paramount in relocation cases as it is in relation to applications for residence orders. This is the only principle of law.

In assessing the child´s paramount welfare regard must also be had to the statutory list of matters in section 1(3), the commonly referred to welfare checklist, but different weight and importance will be attracted to these matters depending on the individual circumstances of each case.

Further regard must also be paid to the guidance and the disciplines identified as to how the court should approach certain important aspects which are peculiar to relocation cases in assessing the child´s paramount welfare, by which I mean the impact of refusal on the child´s welfare, the genuineness of the motive to relocate and the well thought out, realistic and practical proposals associated with it and the genuineness of the opposition to relocation.”

The court was faced with a stark choice, the child relocated to New Zealand or remained in the UK. Either situation would result in one or other parent having contact over some considerable distance. Both parents were fully involved in the child´s care before separation, and both capable of providing adequate care. The mother had no support network in the UK.

The father had a visa to work in New Zealand so the parties were not on an equal footing in terms of their immigration status.

The maternal grandparents had maintained a non-combative stance, something which the paternal grandmother had failed to achieve. Additionally, the father had made allegations about the mother, and the court had formed an opinion that the father was highly critical of the mother, and if he became the parent with whom the child lived in the UK, the court was uncertain whether he would fairly represent the mother to the child.

Allegations by the father, including that the mother was a habitual drug user, were found to be untrue.

Litigants should note the risks of what may be viewed as an unreasonably combative stance, or in making allegations without evidence to support them.

An important factor in leave to remove cases are the parent´s willingness to promote contact and support contact.

Similarly, it is important to not just be reasonable, but be seen to be reasonable, and entirely child focused. Within that, the child’s relationships, and support for those relationships, is clearly an important welfare consideration.

Mostyn summarises guidance for courts in leave to remove cases. It should be noted that this guidance is relevant regardless of whether there is a primary carer or care is shared. Gender is specific to the case and interchangeable:

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?

Is the mother´s application realistically founded on practical proposals both well researched and investigated?
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?
Is the father´s opposition 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 detriment be offset by extension of the child´s relationships with the maternal family and homeland?
Mostyn also highlights the importance of the welfare checklist and that the child´s welfare is the court´s paramount consideration.

Appeal allowed against the lower court´s refusal of a leave to remove application.

Ryder accepted that the court had placed too great an emphasis on motive as reason for refusing leave to remove. While there had been acrimony at the time the relationship had broken down, the “”mother had not refused contact or breached a court order.”

Ryder goes on to point out that other matters were not given sufficient examination, such as the mother’s plans in Germany (accommodation, employment etc) and the extent of the relationship between the children and parents.

“15. There are other issues between the parties, but in the context that I have come to the conclusion that the order must be set aside and the application re heard, I do not propose to express any detailed view about the same, save to say that a relatively superficial view was taken of accommodation that was available in Germany and also a superficial view of the financial needs and obligations of the parties to each other and the employment prospects of the mother in Germany. Likewise, the strength of, that is the nature and extent of the relationship of each parent and the children, was relatively superficially addressed. Those questions, alongside other welfare factors, need to be re explored without what became the dominant question of motivation which became decisive in the way that it did.”

The judgment highlights the importance of not being overly reliant on a single point, and more importantly, not where there is insufficient evidence to support that point.

What needs to be properly explored is whether relocation is in the child´s best interests, and the examination and balancing of all the welfare matters, motive and the practicalities related to the parents’ plans (including the enforceability of contact, even if relocation is to a country covered by the Brussels II Revised Regulations). On this last point, while a contact order may, in principle, be enforceable in another EU member state, can the UK based parent afford the costs related to enforcement in another jurisdiction? If not, to our mind, this mitigates the importance of the country of relocation being party to the Brussels II Revised Regulations.

The father had sought leave to remove, and appealed the court´s refusal of his application.

Lord Justice Ryder once again emphasises that leave to remove cases must be decided on the facts of the individual case, and that the courts have moved beyond the idea that cases such as Payne v Payne provide a binding precedent. The only principle of law, from Payne, is the paramountcy principle, that child welfare must be the court´s paramount consideration:

“The statements of guidance to which this court has been referred are no more than that, based on the facts of individual cases. It is simply unhelpful to elevate them into statements of principle, and I decline to do so. In any event, all that the exercise that father wished the judge to perform highlights is that these cases are often very finely balanced, with one welfare factor or another having persuasive force in the judge’s evaluation.”

A further point relates to Human Rights arguments in leave to remove (and indeed) other family law cases, and whether the court has the right to interfere in Article 8, the Right to Family Life. Ryder LJ makes the point that when one party makes an application, it is they who seek to interfere in the rights of the other holder(s) of parental responsibility. The Children Act 1989 provides the mechanism that any decision on competing rights, as mandated by Parliament in s.1 of the Children Act 1989, will be based. That being the child´s welfare.

The mother succeeded in her application to permanently remove the children to Sweden. A number of factors came into the balancing exercise, but notably the mother´s lack of support and fragility in the UK, and the father´s having pursued allegations against her care of the children with both police and social services. The fact that allegations were held to be untrue or exaggerated at times weighed against the father´s; evidence. The mother´s prospects in Sweden would be undeniably superior while her prospects in the UK were bleak.

Mostyn repeats his summary of the governing principles in leave to remove cases (repeated from an earlier judgment in Re TC & JC (Children: Relocation) [2013] EWHC 290 Fam:

The welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.
The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable and helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them.

The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.

The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):
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?

Is the mother´s application realistically founded on practical proposals both well researched and investigated?

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?

Is the father’s opposition 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 detriment be offset by extension of the child’s relationships with the maternal family and homeland?
The guidance should not be applied rigidly as if it contains principles from which no departure is permitted.

There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer.

Arguments as to what label should be applied to the case by virtue of either the time spent with each of the parents should be avoided.

The mother sought leave to remove to enable her to relocate the child to Hong Kong to take up employment there. This case made headlines (in the Daily Mail) for the observation that Skype was no panacea to a lack of physical contact. The judge observed:

“Miss D. thought that Skype could be beneficial for a child even as young as two because the child could see who they were talking to, but the mother´s proposals do not take account of time lag, competing interests in a child´s life, what a two year old talks about on consecutive days, etc. Also leaving aside the technology and timing issues, the disadvantages of Skype – as any user will know – are all too often the lack of clarity of image, the sound delay even if short, and, as Miss Mills colourfully notes in her closing submissions, “You can´t hug Skype”.
The mother´s past conduct in relation to contact and what might be viewed as controlling tendencies and a lack of recognition of the importance of the father´s role in the child´s upbringing were also significant factors in her leave to remove application being refused.

Where the relocating parent is proposing Skype/telephone contact with young children, this judgment is worth bringing to the court´s attention, and the Honourable Mr Justice Wood´s opinion as to Skype (given his tech-savvy experience… which isn´t always universal among CAFCASS and the judiciary).

This case shows the detailed, critical examination of proposals and history which is essential in leave to remove cases, and in our opinion, exemplary.

The mother´s having placed obstacles in the way of contact was a factor in leave to remove being refused. The mother’s arguments were unduly critical of the father and she could not think of a single positive thing to say about him. Her focus had been on the maternal family whereas it should have been on the child’s needs and his parents. The judge did not accept she would be devastated but disappointed.

The judge usefully bullet points the matters he weighed when considering the case before him.

Civ 882 makes clear that selective or partial legal citations taken from Payne in support of legal argument or judgment is likely to be regarded as an error in law:

“27. Selective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law. In particular, a judgment that not only focuses solely on Payne, but also compounds that error by only referring to the four point ´discipline´ set out by Thorpe LJ at paragraph [40] of his judgment in Payne is likely to be wholly wrong. There are no quick fixes to be had in these important and complicated cases; the paragraph [40] ´discipline´ in Payne may, or may not, be of assistance to a judge on the facts of any particular case (whether there is a ´primary carer´ or not) in marshalling his or her analysis of the evidence prior to the all important analysis of the child´s welfare.”

Ryder´s comments at paragraph 18 will also be of particular interest, and are certainly ones we support:

“18. Furthermore, in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise, the absence of any emphasis on the child´s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it, to which I will return in due course.”

The case related to an application for leave to remove in respect of two teenagers. One being under 16, the other aged 17. The appellate court refused appeal against the recorder´s decision to refuse leave to remove in respect of the younger teen, despite their expressing their wish to relocate. The underlying reason was that the mother´s plans for the relocation were not sufficiently thought through. In respect of the older child, appeal was allowed, as “The simple fact is that E is too old to be directed by the court in a matter of this kind.”.

The judgment provides a useful analysis in relation to the Children Act and the court´s powers in relation to making orders in respect of children above the age of 16.

Temporary Removal from Jurisdiction Case Law

Shared Living Arrangements Case Law

Section 91.14 Case Law

Reversal of Residence Case Law

Paternity Testing Case Law

Parental Alienation and Intractable Contact Dispute Case Law

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Without Notice And Non Molestation Order Case Law

Non Biological Parent Case Law

Leave to Remove Case Law

Jurisdiction Case Law

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