Leave to Remove: No Longer the Carer's Prerogative?

Relocation relocation

It used to be widely believed in legal and other circles that a primary carer (usually the mother) who sought leave to remove her children permanently from the jurisdiction would succeed providing her plans were coherent and sensible.

Payne v Payne [2001] EWCA Civ 166 is still classed as the leading authority on relocation cases and involved the Court of Appeal reviewing a long line of authority going back more than 30 years to the case of Poel v Poel [1970] 1 WLR 1469, [1970] 3 All ER 659. Prior to Payne the guiding principle was based upon a presumption in favour of granting a reasonable and properly thought out application. Payne considered this presumption and established 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 HH Judge 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 and the judgment of Dame Elizabeth Butler-Sloss is most quoted as it sets out what was the accepted approach to relocation applications. She stressed “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 eff ect upon the welfare of the child, continued to be a factor of great weight”.

While the judgment of Dame Elizabeth Butler-Sloss is most quoted, Thorpe LJ made it clear that he was keen to guard against the risk of creating a presumption that an applicant’s proposals are compatible with the child’s welfare and suggested the court adopt the following approach as a prelude to conclusion:

(i) First, “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” and if so, “is the mother’s application realistic” so that it is, “founded on practical proposals” which have been both, “well researched and investigated”? Thorpe LJ said that if neither of these hurdles are passed then, “refusal will inevitably follow”.

(ii) Second, if the above is satisfied then the court should carefully appraise the father’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 the father if the application is granted and offset this against the extension of the child’s relationships with the maternal family and homeland.

(iii) Third, 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”.

(iv) The outcome of the second and third questions 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”.

While suggesting this discipline, Thorpe LJ stressed that he did not wish to diminish the importance that the Court of Appeal has consistently attached to giving “great weight” to “the emotional and psychological well-being of the primary carer” when evaluating the welfare of the child.

In the Court of Appeal case of Re G (Children) (Removal from Jurisdiction) [2005] EWCA Civ 170, [2005] All ER (D) 227 (Jan) the mother successfully appealed against a dismissal of her application to permanently remove her children to Argentina, her place of origin. Thorpe LJ held that the first instance
decision had distinctly failed to give a proper assessment of the emotional impact a refusal would have on the mother as the primary carer. He greatly emphasised the notion of transference of unhappiness from the primary carer to the child in the event of a refusal to relocate. Although the mother was granted permission to return to her homeland, the Court of Appeal laid 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.

Jurisdiction
And what of the approach in other jurisdictions? The approach of the English courts is not so 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 in Payne by drawing attention to the child’s welfare as the paramount principle in relocation cases and refusing to place too great an emphasis on the psychological and emotional wellbeing of the primary carer.

Essential reading for those solicitors involved in opposing a leave to remove application is the Reunite research published in July 2009 (http://www.reunite.org/edit/files/Library%20-%20reunite%20Publications/Relocation%20Report.pdf). The research focuses on the difficulties in enforcing contact orders abroad by mirror orders, funding contact, the loss of the wider familial relationship for the child and the long term effect of the loss on establishing important relationships. The research recognises that losing the continuity and familiarity of relationships causes grief for children (which is akin to bereavement) and that such loss may cause profound and adverse personality changes in the long term.

Momentum for change
Perhaps unsurprisingly there is now considerable momentum for a change of law in this area. In Re D (Children) sub nom BD v AID [2010] EWCA Civ 50
Wall LJ (as he was) acknowledged the criticisms of Payne and stated at para 33: “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 of children by permanent breach of the relationship which children have with the left behind parent.”

In March 2010 there was a meeting of family judges from all over the world in Washington DC and a Declaration on International Family Relocation (the
Declaration) was made stating:

• In all applications concerning international relocation the best interests of a child should be the paramount (primary) consideration. Therefore, determination should be made without any presumptions for or against relocation.
• In order to identify more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors listed in no order of priority. The weight to be given to any one factor will vary from case to case:
  1. The right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with a child’s development except if the contact is contrary to the child’s best interests.
  2. The views of the child having regard to the child’s age and maturity.
  3. The party’s proposals for the practical arrangements to relocation, including accommodation, schooling and employment.
  4. Where relevant to the determination of the outcome, reasons for seeking or opposing relocation.
  5. Any history of family violence or abuse, whether physical or psychological.
  6. The history of the family and particularly the continuity and quality of past and current care and contact arrangements.
  7. Pre-existing custody and access to determinations.
  8. The impact of grant or refusal on the child in the context of his or her extended family, education and social life and on the parties.
  9. The nature of the inter-parental relationship and the commitment of the applicant’s support and facilitation of the relationship between the child and the Respondent after the relocation.
  10. Whether the party’s proposals for contact after relocation are realistic, having regard to the cost on the family and the burden to the child.
  11. The enforceability of contact provisions ordered as a condition of relocation in the stated destination.
  12. Issues of mobility for family members.
  13. Any other such stances deemed to be relevant by the judge.

Mostyn J referred to the Declaration in the recent case of Re AR (A Child: Relocation) [2010] EWHC 1346, [2010] All ER (D) 236 (Jun). Here a French mother sought leave to permanently remove a five-year-old child to Troyes in the champagne area of North East France. The English father applied for shared residence. The child had only French nationality. The father had Parental Responsibility by virtue of being named on the child’s birth certificate.

Mostyn J granted the father shared residence and refused to allow the mother leave to remove. In calling for a review of Payne, Mostyn J went further and said at para 53: “If one were to draw up a hierarchy of human rights protected by the Convention I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing. Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life. Recognition of the existence of this very obvious and critically important right is sometimes, so it seems to me, lost in the relocation cases.”

Criticism
A recent case to be considered at a time when Payne is being criticised is Re J v S (Leave to Remove) [2010] EWHC 2098. Here a Japanese mother sought permission to return to Japan with the two boys aged eight and 10. The Swedish father sought to extend the length of the weekend contact available to him. The parties had lived in London for over 20 years and following divorce the mother lived in London with the children and the father had alternate weekend contact. The children alternated their holidays between Japan and Sweden. The mother spoke Japanese to the children and her mother stayed for six to eight months every year.

Eleanor King J granted the mother permission to relocate to Japan. However, it could be said that the case is extremely fact-specific given that the mother suffered a gastro-intestinal illness with vomiting, depression and anxiety. Eleanor King J accepted expert medical evidence that if the mother were refused permission to return to Japan, she would suffer extreme ill health requiring long-term medical and psychological support and this would be harmful to the children’s welfare. Eleanor King J held that the welfare of the children was paramount and taking into account the questions in Payne she decided that the mother’s application was genuine and realistic. While she accepted that the father’s opposition was also genuine, it appears that the detrimental effect on the mother’s medical condition was a decisive factor in the balancing exercise such that Eleanor King J accepted the effect of refusing the mother’s application would have been so harmful to the mother that it meant it was in the children’s welfare to grant permission.

Comment
Relocation cases are accepted as difficult and painful for all concerned and despite recent criticism, the principles established in Payne still live on and it remains the leading relocation authority. That being said, recently reported cases along with the Reunite research and Declaration on International Family Relocation demonstrates there is now considerable momentum for change in this area of law. We submit that an emphasis on the wishes and feelings of the relocating parent, even with practical proposals, may now no longer be the deciding factor in relocation cases. The presumption that the applicant’s
realistic and genuine proposals are compatible with the child’s welfare is being increasingly questioned and we submit that we are moving to a time
when leave to remove may no longer be carer’s prerogative.

Kim Beatson is Partner and Head of the Family Law department and Shelley Cumbers is a Solicitor in the Family Law department at Anthony Gold. For further information email Kim or email Shelley or call 020 7940 4000.