Kim Beatson, Partner
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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. (See previous article published in Solicitors Journal) Until very recently Payne v Payne [2001] EWCA Civ 166 was the leading authority on relocation. In the Court of Appeal the Judgment of Dame Elizabeth Butler-Sloss is most often quoted when she said "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". In other words the needs of the main carer were paramount and such Applicants were frequently granted permission to remove children permanently from England and Wales to another jurisdiction.
Perhaps unsurprisingly there has been considerable momentum for a change in the law in this area. There has also been criticism of the approach in Payne not least on the international scene where the approach of the English Courts has been out of step with other jurisdictions, many of which have tended to favour shared residence arrangements between parents.
In March 2010 there was a meeting of family Judges from all over the world in Washington DC. A declaration on international family relocation was made confirming that the best interests of a child would be paramount in all circumstances and that any judicial determination would be made without any presumption for or against relocation. The declaration went on to identify the various factors which would be relevant in all cases. This document is known as the Washington Declaration.
Mostyn J referred to the declaration in the case of Re AR (A Child: Relocation 2010) EWHA 1346. When refusing to allow a French mother leave to remove a 5 year old child from England he said:-
"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."
The latest authority in the long line of difficult and painful cases is the Court of Appeal decision in MK v CK [July 2011]. As in Payne, MK v CK involved a mother who sought to return to her native country, Canada, with the children of the family. The lower Court allowed her to do so and the father successfully appealed against the decision.
The significant factor in this case was that the children, girls aged 4 and 2 years, spent 5 nights with their father in every 14 day period. The Court of Appeal was respectful of this shared care arrangement and regarded it as more important than the needs of the main carer mother.
Clearly we are moving to a time when leave to remove may no longer be the carer's prerogative and the case of MK v CK will surely encourage fathers (usually) to seek shared residence arrangements.
Kim Beatson is Partner and Head of the Family Law department at Anthony Gold. For further information email Kim or call 020 7940 4000.
