Kim Beatson provides a round-up of leave to remove cases:
Mr Justice Holman described international relocation cases as the “hardest of dilemmas” in the case of S v Z (Leave to Remove)  EWHC 846 (fam),  2 FLR 581. These cases are difficult and painful for all concerned but travel between countries is an important part of everyday life and some would say that unrestricted movement from country to country is fundamental to our concept of freedom.
Payne v Payne  EWCA Civ 166,  Fam 473 is still the leading authority on relocation cases. Prior to Payne the guiding principle was based upon a presumption in favour of granting a reasonable and properly thought out application. Payne set out a new procedure for relocation cases and Dame Elizabeth Butler-Sloss 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 effect upon the welfare of the child, continue to be a factor of great weight”.
In Re B (Children)  EWCA Civ 956,  All ER (D) 16 (Jul) the Court of Appeal considered the approach laid down in Payne. Mr Justice Thorpe 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. He 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.
Being an increasingly common phenomenon, international relocation is an area of law upon which family practitioners should keep a careful eye on case law.
In S v T  EWHC 4023 (Fam),  All ER (D) 162 (Feb) the father was from England and the mother was from Russia. They had a son born in 2011 and separated in May 2012. The mother applied for a residence order and permission to relocate permanently to Russia. The father applied for a prohibited steps order and an order bringing about a shared care arrangement.
The father had a number of objections to the mother’s proposals in terms of the relocation to Russia with M including objections to the physical surroundings of the property in which M would live and doubts as to whether there was a serious commitment to M becoming bilingual.
The court found that both parents were essentially genuine in their motivations. The mother’s primary motivation was to go home. She felt isolated and unsupported in the UK. The father’s main concern was M’s welfare and interests.
The judge reviewed the authorities specific to an application for permission to relocate permanently:
- the court must scrutinise the proposals of the applicant bearing in mind that in a going home case they might be a less arduous undertaking than if it was an entirely new venture;
- the court must look at the motives of the applicant in making the application and, in particular, consider whether or not a significant motivation is to exclude the other parent from the life of the child; and
- the court must consider the impact of relocation upon the left behind parent and his or her extended family.
After giving the case his “closest and most anxious attention”, the judge gave the mother permission to relocate to Russia with M. The judge pointed out that when parties enter into transnational parenting they do so with their eyes wide open and with an understanding that if their relationship breaks down then going home may be a major issue for one parent. Moreover, if breakdown takes place while the child is very young then the child is likely to follow the parent with whom he spends most of his time.
O (A Child)  EWCA Civ 1955,  All ER (D) 39 (Dec) concerned an appeal against an order granting the mother leave to remove the parties’ nine-year-old daughter to Ireland. At the original hearing the judge had granted the application on the basis that the mother’s employment repatriation package with Allied Irish Bank would provide her and the child with financial security and the move would be in the child’s best interests. This was despite the child’s clear wishes and feelings to retain all that was familiar to her in England.
Following the decision, the father, who was in arrears of child maintenance, offered to make all the outstanding payments and make secure future periodical payments. The first instance judge was asked to reopen the case. The judge did so and heard further (albeit limited) evidence regarding the financial situation. The judge still found that the relocation was in the best interests of the child.
The father appealed. By the time of the appeal, the mother confirmed that she had in fact taken early retirement. She had known about this option at the time of the first hearing and the father argued that she had deliberately misled the court. The father also argued that the judge had been wrong to refuse an application for an updated Cafcass report and to refuse separate representation for the child.
The father’s appeal was dismissed. The Court of Appeal stated that this was a “finely balanced case that required considerable judicial expertise”. However, the court found that the first instance judge had been right to focus on the practicalities and the importance of financial as well as emotional security. The new evidence did not add anything and would not have led the judge to a difference decision.
In Re E (Relocation: removal from jurisdiction)  All ER (D) 132 (Feb),  EWCA Civ 1893 the children were aged two and five. The mother sought permission to relocate to America. She had started a relationship with an American citizen who lived there. She offered to bring the children to the UK for the three summer months of the American school holiday and alternate Christmases.
The Cafcass officer concluded that she was unable to recommend that the mother be granted leave to remove the children from the jurisdiction.
The judge found that the mother who was the primary carer had put together solid and comprehensive relocation proposals. Rejecting the Cafcass officer’s recommendation, the mother’s application was granted on condition that she obtain a mirror order in America containing the judge’s contact regime.
The father appealed. He argued that the judge had failed to give cogent reasons for rejecting the Cafcass officer’s recommendation. His appeal was dismissed. The Court of Appeal stated that the Cafcass report was incomplete, one-sided and liable to be rejected by a judge who is required to look at these cases in the round. The officer had failed to take into account the quality of the mother’s proposals which included extensive time with the father.
In Re TC and JC (Children: Relocation)  EWHC 292 (Fam),  All ER (D) 316 (Feb) the mother was Australian and the father was British but held an Australian permanent resident visa. The parties met in Australia in 2001 and began to live together in 2005 at which point they moved to England. They married in Australia in 2006 and lived there for a short while before moving to England in 2010. The mother became unhappy and in 2011 she abducted the children (aged three and a half and two years) to Australia. This led to Hague Convention proceedings and the children were eventually returned to England.
The case came before Mr Justice Mostyn in February 2013 when both parents made it clear that shared care was agreed and that the “unsuccessful” parent would relocate with the children. As a result Mostyn J felt the case was “not as heart-rending” as the more standard leave to remove dispute.
The judge was clearly concerned by the mother’s immigration position and heard evidence about this and about her serious indebtedness. The father’s visa allowed him to remain in Australia permanently in contrast with the mother’s immigration position in the UK which uncertain and would take approximately 40 weeks to resolve. During that period the mother would be obliged to maintain and accommodate herself and her dependents but would not have recourse to public funds. While the father offered interim financial support he acknowledged that the mother’s lifestyle would be extremely frugal.
In Australia the mother had a home, family and employment prospects and the father, to his credit, was willing to join her there. Accordingly, the judge granted the application to relocate to Australia on a shared care basis while condemning the mother, stating “child abduction seldom, if ever, has a happy ending. It is right to have been described as a form of child abuse”.
“When parties enter into transnational parenting they do so with their eyes wide open”
The most recent reported case on international relocation is Y (Children)  EWCA Civ 1287,  All ER (D) 163 (Oct) where the Court of Appeal heard the father’s appeal from the decision of His Honour Stephen Wade dismissing the father’s application for leave to permanently remove two children from the jurisdiction to Missouri, USA.
The application concerned two boys, aged 11 and seven years, the children of the father’s first marriage. The father also had a two-year-old child by his second marriage to a US national. He and his second wife were primary carers for all three children.
Permission to appeal was granted on the basis that the judge at first instance had failed to consider the potential breakdown of the father’s second marriage as a result of refusal to allow him and the children to relocate and that the judge had failed to adequately consider the implications for the father’s youngest child by his second marriage.
- Mr Justice Ryder said it was a case of balancing the welfare factors eg looking at the nature of and harm to the first wife’s relationship with her two children as against the damage caused by preventing relocation, the potential for breaking up the second marriage and the circumstances of the “non-subject child of the second marriage”.
- The judge at first instance was entitled to make “a value judgment” having heard all the evidence. In this case the judge had heard that the fragmentation of the second marriage was simply a remote possibility and it was, therefore, a circumstance which he had to consider along with all the others. At first instance the judge made his decision based on this evidence and Ryder LJ held that he did so “loyally accepting the written evidence put before him by the parties”.
- Ryder LJ held that it was unnecessary for the court to consider the human rights implications of all the children including the child of the second marriage. He said this was a private law application with no public law implications. Accordingly, he held that the court was not required to undertake a human rights assessment where the state (as opposed to the parents) was not interfering with family life.
NJ v OV  EWHC 4130 (Fam),  All ER (D) 176 (Dec) concerned the mother’s application to permanently relocate a five-year-old little girl to Sweden. The mother was born in Sweden of Finnish parents and the father was born in London.
The mother had wrongfully retained the child in Sweden in July 2011. Pursuant to the Hague Convention she was ordered to be returned to England in January 2012. The mother made an application to permanently relocate to Sweden shortly after her return but it was not heard until November 2014. Previous adjournments were made as a result of concerns about the child’s care including sexualised behaviour and unexplained bruising leading to a Direction for a s 37 Report.
The matter came before Mostyn J in November 2014 and he commented on the absence of a “comfortable middle ground” in these cases. However, he felt that the law in this area was now “clear and stable” with no presumption in favour of relocation. He commented on the reality that transnational couples who separate should have been alive to the future possibility of relocation at the start of their relationship and he summarised the governing principles as follows:
- The welfare of the child is paramount
- The guidance given by the Court of Appeal which directs the exercise of the welfare discretion is valuable in assisting the judge in identifying the factors which will be most important.
- The guidance is not confined to classic primary care applications and may be utilised in other kinds of relocation cases.
- The guidance suggests that the following questions must be asked (assuming the application is the mother’s):
- 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?
Here the mother was not returning to a stable and supportive environment. Indeed, she had a turbulent and criminal family history in contrast with the father’s stable family in England. There were concerns about the mother’s alcohol abuse demonstrated by hair strand tests and her choice of violent partners. She was also unemployed, isolated and deeply unhappy according to a clinical psychologist. She was living in unsuitable accommodation.
Mostyn J found the father to be emotional and rather obsessive. The father was highly critical of the mother and not able to offer much to ameliorate her bleak situation. He had also been very keen to monitor every aspect of her life.
In what was clearly an exceptionally difficult case and evenly balanced on the evidence, Mostyn J found that the child had a better prospect of a healthy and safe life in Sweden where the mother had better prospects in terms of accommodation, employment and general stability.
Once again, practitioners should be aware of the difficulties of appealing Children Act Orders when the judge at first instance has clearly had regard to all the circumstances and has “made a value judgment” as he is perfectly entitled to do so.
It is equally important to be cautious of running fresh assertions on appeal which have not been prominent in the court below.
Clients frequently ask practitioners to consider Art 8 rights and the “right to family life” is in common usage. Ryder LJ made it clear that running the human rights argument would be unlikely to succeed in the Family Court on a private law children application.
This article was first published in New Law Journal, February 2015 and is reproduced with kind permission.