Leave to Remove out of Jurisdiction

When a relationship breaks down and one parent wishes to move with the children to another country, what rules will apply? We examine a recent case and its impact on existing law.

The leading case in relation to international relocation is Payne v Payne [2001]. In this case, the mother was granted permission to relocate to New Zealand with her child, with the Judge stating, “the effect on the mother of being forced to stay in England would, in my judgement, be devastating.”

Since Payne, the general rule has been to allow the parent to relocate their children, unless the court thought it would have a detrimental impact on the welfare of the children. It has therefore been extremely difficult to resist such applications.

Payne has been heavily criticised for placing too much emphasis on the wishes and feelings of the relocating parent (in this case the mother). Detractors have described it as outdated, arguing that it does not promote co-parenting and applies a rigid test that too frequently fails to protect a child’s relationship with his/her father.

More recently, however, the courts have shown that their approach is changing and it is no longer taken for granted that they will allow a mother to relocate her children to a different country. The courts have seemed to be inclined to place more emphasis on the value of shared parenting where appropriate. In Re AR [2010] a mother’s application to permanently remove a 5 year old to France was refused. Instead, a shared residence order was made. This is an order which provides that, even if the quantity of care undertaken by each parent is unequal, each parent has equal status in law. Recent cases have suggested that, if such an arrangement is practicable, there is no reason to discourage it.

In the recent case, Re K (Children) [2011], the mother was Canadian and the father was Polish. They had two daughters, one aged 4 years and the other aged 18 months. Both parents were bankers, although both worked part-time. The parents separated and obtained a shared residence order in August 2010, which provided for the father to have the children for 5 nights per fortnight with the mother caring for them the remaining time. The mother employed a nanny whereas the father cared for the children unaided. In this respect the father and mother’s share of the care was broadly equal.

The mother was granted permission to relocate to Canada with the children. The father appealed, submitting that the decision was flawed. His appeal was successful, with Lord Justice Thorpe stating that “once the care is shared there is not the same dependancy and the role of each parent may be equally important.”

This case is clearly extremely significant and suggests that the courts are willing to take a different approach to international relocation applications, concentrating on what it best for the child rather than placing so much emphasis on the relocating parent’s wishes and feelings.

It is important to note, however, that Re K will not be applicable in all cases and the guidance set out in Payne is still the correct test where there is no shared residence order in place (which is likely to be the vast majority of cases). A recent case Re W (Children) [2011] affirmed this when a mother’s wish to relocate to Australia with her son and daughter was granted on appeal. It was held that the judge at the original hearing had erred in law by not attaching enough weight to the effect on the mother if the application had been refused.

Furthermore, the Court has an extremely wide discretion so it is difficult to predict outcomes of applications with any great certainty.

As stated by Lady Justice Black in Re K:

The ways in which parents provide the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of children over time. When a relocation application falls to be determined, all of the facts need to be considered.

Nevertheless, Re K has brought the focus back on to the court’s primary role of placing emphasis on the welfare of the child and the outlook for parents who resist applications for relocation is certainly improving.

It is understood that the decision in Re K will not be appealed.

Contact Jane McDonagh
jane.mcdonagh@smab.co.uk