Kim Beatson, Partner and Shelley Turrell, Trainee
In September 2005 Resolution hosted a debate on the controversial topic of leave to remove. Kim Beatson, chair of Resolution, and Shelley Turrell look at the outcome and consider the case law
It is widely believed in legal and other circles that a primary carer who seeks leave to remove their child or children permanently from the jurisdiction will succeed, providing their plans are coherent and sensible.
Case law
Any review of this presumption requires an analysis of the case law. Payne v Payne [2001] is now classed as the leading authority on relocation cases and involved the Court of Appeal reviewing the long line of authority going back more than 30 years to the case of Poel v Poel [1970]. Prior to Payne the guiding principle was based upon a presumption in favour of granting a reasonable and properly thought-out application. Payne looked at this presumption and set out a new procedure for relocation cases.
In Payne the father was British and the mother was a New Zealand citizen. She applied for leave to remove their four-year-old daughter to New Zealand and at first instance HHJ Langan allowed her application on the basis that the relocation would make her happier, which in turn would be in the child’s best interests. The father unsuccessfully appealed to the Court of Appeal, where Thorpe LJ made the following points that shine some light on why it is common for a primary carer to succeed on an application to relocate:
- ‘The mother who emerges with the responsibility of making the home for the children may recover her sense of well-being simply by coping over a passage of time. But often the mother may be in need of external support, whether financial, emotional or social.’ This emphasises the recognition that relocating to the primary carer’s homeland is likely to bring about needed support, allowing them emotional stability, which in turn benefits the child.
- ‘In the remarriage cases the motivation for relocation may well be to meet the stepfather’s career needs or opportunities. In those cases refusal is likely to destabilise the new family emotionally as well as to penalise it financially.’
- ‘In most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother’s future psychological and emotional stability.’
The judgment of Dame Elizabeth Butler-Sloss P is most quoted as it sets out the modern approach to relocation applications. She stressed that:
… that there is no presumption in favour of the applicant, but reasonable proposals made by the applicant parent, the refusal of which would have adverse consequences upon the stability of the new family and therefore an adverse effect upon the welfare of the child, continue to be a factor of great weight.
The president then set out further factors, summarised at the end of the article.
In Re B (Children) [2004] the Court of Appeal reconsidered the approach laid down in Payne. Thorpe LJ stressed that each case was fact-dependent and that the applicant’s explanation for the planned relocation would be at the core of every case. Thorpe LJ made it clear that he was keen to guard against the risk of creating a presumption that an applicant’s proposals would be compatible with the child’s welfare and, by referring to his earlier judgment in Payne, recommended that courts adopt the following discipline as a prelude to conclusion:
- They should ask whether the parent with care’s application is ‘genuine’ in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. It would then be necessary to ask if the mother’s application is ‘realistic’, so as to be founded upon ‘practical proposals’. Thorpe LJ said that if neither of these hurdles are passed then refusal will inevitably follow.
- If the above is satisfied then the courts should carefully appraise the parent without care’s opposition and question whether it is ‘motivated by genuine concern for the future of the child’s welfare’ or whether it is ‘driven by some ulterior motive’. The court should look at the extent of the detriment to them if the application were to be granted and balance this against the extension of the child’s relationships with the parent with care’s family and homeland.
- The court should question ‘the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal’.
- The court should conduct an ‘overriding review of the child’s welfare as the paramount consideration’, and, in evaluating the welfare of the child, ‘great weight’ must be given to the ‘emotional and psychological well-being of the primary carer’.
The latest Court of Appeal decision is that of Re G (Children) [2005]. In this case the mother successfully appealed against a dismissal of her application to permanently remove her children to Argentina, her place of origin. In the Court of Appeal Thorpe LJ held that at first instance there had been a distinct failure to give a proper assessment of the emotional impact that refusal would have on the mother as the primary carer. He gave great emphasis to the notion of the transference of unhappiness from the primary carer to the child in the event of a refusal of the application. Although the mother was granted leave to remove, the Court of Appeal did set down a number of consequential issues to be agreed between the parties before the mother relocated. These included arrangements for contact, investigation into the means of how a contact order could be mirrored in Argentina, the children’s enrolment into schools, funding for education, cessation of the mother’s periodical payments and the costs of travel.
The Resolution debate
On 29 September 2005 the family lawyers’ group Resolution debated the motion ‘This House believes that leave to remove is too easily granted’. James Turner QC and Carolyn Usher, a solicitor, spoke against the motion. Stephen Cobb QC and Mark Berelowitz, a child psychiatrist, spoke for the motion.
These cases are difficult and painful for all concerned, so it was not surprising that the speakers all dealt with the subject in a moving and poignant way.
Mr Berelowitz reminded us that children prosper best after divorce where they have a significant relationship with both parents. It must be significant enough to allow for conflict, arguments and discipline. In his words, the father must be ‘more than a Disneyland dad’. So, Mr Berelowitz felt that a non-resident parent who sees his children during school holidays only is unlikely to experience this quality of relationship. And whilst there is substantial authority on maternal depression and the effect on the child, there appears to be little authority on the lower-grade unhappiness that a parent refused leave to remove might be expected to suffer from, at least in the short term. This was certainly a significant factor in Re G.
Mr Berelowitz concluded by saying that the average parent, with six weeks’ annual leave or less, could not be expected to maintain a substantial relationship with a child of under 15 years of age who lives more than three hours’ travel time away.
These views were reinforced by Stephen Cobb QC. He too felt that the approach of the courts gave the impression of a presumption in favour of the applicant and that the distress of the applicant had been given far too much weight, by contrast with the ‘left behind’ parent, who received judicial sympathy but that was all.
Putting the opposite view and speaking against the motion, James Turner QC reminded us that the child’s welfare does not ‘trump’ all other Children Act factors and that each case would be dealt with on its own facts and merits. Leave to remove might be refused where the real motive was to thwart contact, or the
resident parents plans were irrational or where a shared parenting arrangement had hitherto existed.
Even he conceded that, in practice, a primary carer with well-thought-out plans and a good reason for leaving would succeed notwithstanding the adverse effect on contact. That would invariably be so where the primary carer had an overseas background and support networks in an overseas country. It would also be so where the primary parent had better career prospects overseas or a new partner who was resident overseas or who was required to live overseas in connection with work.
Mr Turner made the strong point that living in the nethermost reaches of England and Wales might prove just as disruptive as moving to other European countries, and perhaps more so. Calais may create fewer problems than Gateshead.
In developing that line of argument, Carolyn Usher stressed that travel between countries had become an important part of everyday life and that unrestricted movement from country to country was fundamental to our concept of freedom. She reflected that most child abductions occur when parents return to their homeland upon the disintegration of a marriage or relationship quite unaware of the fact that they are doing anything wrong. She pondered whether more child abductions would occur if leave to remove was made more difficult.
And what of the approach in other jurisdictions? The approach of the English courts is not so very different from the approach of the Australian and US courts. In some Scandinavian countries, notably Sweden, it is difficult to obtain the court’s permission to relocate, but such countries are much more likely to stress the importance of both parents in a child’s life. Notably, these countries tend to favour shared residence arrangements and have far greater parity of maternity and paternity rights, including leave following the birth of a child.
In New Zealand the courts have declined to follow the guidance of Thorpe LJ in Payne and the leading New Zealand authority is D v S [2002]. In that case the Court of Appeal stressed that the right of parents to move in a mobile society must be considered as a factor alongside the child’s welfare and that an overall view must be taken when assessing the child’s welfare. The Court highlighted that a parent’s rights are rights against others and not against the child. For example, each parent’s right to contact and right to freedom of movement must be balanced overall against the child’s welfare. By drawing attention to the child’s welfare as the paramount principle in relocation cases, the Court rejected the guidance in Payne on the basis that it places too much emphasis on one consideration over others, that being the psychological and emotional well-being of the primary carer. Instead, the Court stressed that an open approach should be adopted and decisions must always be guided by the interests of the child.
Ms Usher gave a very sad example of how the New Zealand law can work in practice. She mentioned an unpublished case where an Australian-national mother had a relationship with an Irish-national father. They settled in New Zealand and did not marry or cohabit. A child was born but the father never lived with the child and nor did he have significant contact. The New Zealand courts refused to allow the mother to relocate to her homeland and family in Australia.
Perhaps the time has come for our Court of Appeal to revisit the starting points and presumptions behind such applications. Interestingly, the case of Re X and Y (Leave to remove from the jurisdiction: No order principle) [2001] was decided shortly before the Court of Appeal decision in Payne and Munby J proposed a rather different test. In his judgment he made it clear that it is the duty of the court to apply ss1(1) and 1(5) of the Children Act 1989 and to do so with regard to the welfare checklist. Munby J held that the burden is on the applicant to make out a positive case that, on the balance of probabilities, it is in the interests of the child that the order should be made. He emphasised that the court should avoid all reference to starting points and presumptions. In leave to remove cases, Munby J still felt that the wishes of the custodial parent will always be a relevant factor and said that, typically, such wishes should properly be treated ‘as not merely important but as carrying very great weight’. However, he held that ‘the questions must be examined from the point of view of the child,’ because all applications ‘must be determined in accordance with the paramount interest of the child’. He emphasised that the reasonableness of the custodial parent’s proposal should be assessed when the court is considering the child’s welfare, rather than the parent’s proposals being discussed as a separate issue.
Munby J held that the key question for the court to address its mind to is this:
Has the applicant parent established that, having regard to the medium to long-term welfare of the child, and applying the welfare checklist in s1(3), the child will, overall, be better off living abroad than living in this country?
