A mother applied for leave to take the child aged 3 (& of whom she had custody) to New Zealand to live with her new husband who had obtained employment there. Mother was pregnant.  Father had been having contact once a week for 2 ½ hours.  Mother was happy for him to see the child if he came to New Zealand.  Permission was granted to the mother.  Sachs LJ held (at p 1473E): ‘When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent.  Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has rightly been given.  Any such interference may, as my Lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent.  In that way it might well in due course reflect upon the welfare of the child.  The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.'

Winn J concluded: ‘the child's happiness is directly dependent not only upon the health and happiness of his own mother but upon her freedom from the very likely repercussions, of an adverse character, which would result affecting her relations with her new husband and her ability to look after her family peacefully and in a psychological frame of ease, from the refusal of the permission to take this boy to New Zealand which I think quite clearly his welfare dictates.'

NASH V NASH [1973] 2 ALL ER 704, CA (Davies, Cairns, Stamp LJJ)

The mother of a five year old wished to go to live in South Africa where she had a new job as an art teacher.  Father's opposition was largely centred on his antipathy to apartheid.  Permission was granted.

Davies LJ, p 706G: ‘But I emphasise once more that when only one parent has been given custody, it is a very strong thing for a court to make an order which will prevent the following of a chosen course by the parent who has custody.'

BEVAN v BEVAN [1974] 4 Fam Law 126, CA (Davies, Stamp, Scarman LJJ)

Mother had married an American employed in the UK.  Father had regular contact: the two children aged 16 & 11 were very close to him.  The new husband was recalled to America by his employer.  Mother was refused leave to take the children and residence was transferred to father (because mother was planning to go in any event).  Poel was not cited to the court and no reference is made to the views of the children.  The Judge relied on the Englishness of the children, their loss of friends, the disruption to their education (O Levels and new boarding school).

A V A [1980] 1 FLR 380, CA (Ormrod, Brandon & Brightman LJJ)

Mother was Chinese and came from Hong Kong where she had joined father (also Chinese) for an arranged marriage. She spoke very little English and had no roots or family here.  She would be very unhappy if she had to stay here and wished to take the two year old child home.  Permission granted.

MURRAY 1980, CA (30.7.80, UNREPORTED)

Mother wished to join her family who had settled in Florida.  She had no real roots in the UK and wished to take her two children aged 8 & 7 with her.  Permission was granted.  The mother was entitled to restart her life and make her own decision about how that was to be done.  The court did not found that the father's anxiety about the future impact on contact outweighed the fact that the child had a better prospect of a happy and secure future in Hong Kong than England.

MOODEY V FIELD, 1981, CA (13.2.81, UNREPORTED), CA Transcript 71

Father granted permission to take his three children aged 11, 9 & 7 to South Africa where he had been offered a much more highly paid job.

Omrod LJ: ‘The question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved?  If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible.  One might postulate a situation where a boy or girl is well settled in a boarding school or something of that kind, and it could be said to be very disadvantageous to upset the situation and move the child into a very different educational system. I merely take that as an example.  Short of something like that, the court in principle should not interfere with the reasonable decision of the custodial parent.

RE V 1982 (CA, NI) (10.8.82 UNREPORTED)

The mother, a French woman, wished to take her two children from Northern Ireland back to France.  Her increasing unhappiness outweighed the advantage to the relationship with the father of them remaining in Northern Ireland.

HURWITT V HURWITT [1982] 3 FLR 194, CA (Ormrod, Cumming-Bruce LJJ, Sir David Cairns)

Mother had sole care of four girls aged between 10 and 15 for 10 years and wanted to move to Australia.  The Court of Appeal upheld the trial judge's refusal to grant permission with reluctance.  The mother's plans lacked hard evidence and information.  It was a ‘financial tragedy'.  She had resigned her job and spent her nest-egg on the litigation.  The Court of Appeal all but invited her to make an immediate reapplication having assembled the necessary information in support of her plans.

BARNES V TYRRELL [1982] 3 FLR 240, CA (Ormrod, Dunn LJJ, Purchas J)

Mother with custody wished to take her two children aged 12 & 11 to Australia.  She had married an Australian, then working in England, who wished to return home to a better career opportunity. They had a third child together.   Mother's first application to emigrate failed on the ground that one of the children would be upset at the loss of contact.  She appealed unsuccessfully. A month later she obtained leave to visit Australia for a holiday, having in the meantime obtained psychiatric evidence supporting her view that the children would not be upset by a permanent move.  The holiday was a success and a year later a different judge granted leave for emigration based on the children's marked change of view.  Father was to have contact once a year in England.  Mother's use of a psychiatrist was criticised by the Judge and the Court of Appeal but the permission was nonethless  upheld.

CHAMBERLAIN V DE LA MARE (1983) 4 FLR 434, CA (Ormrod, Watkins, Griffiths)

The mother of children aged 9 and 7 had remarried and had another child and her new husband was offered an important professional post in New York.  She was granted permission to leave with them by the Court of Appeal.  The risk of prejudice from refusal outweighed the benefit of staying. 

Griffiths LJ:

‘The welfare of young children is best served by bringing them up in a happy, secure family atmosphere.  When, after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family and it is the happiness and security of that family on which their welfare will depend.  However painful it may be for the other parent that parent has got to grasp and appreciate that fact.  If a step-father, for the purposes of his career, is required to live elsewhere, the natural thing would be that he will wish to take his family, which now includes his step-children, with him and if the court refuses to allow him to take the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be very damaging to those step-children, or alternatively he may have to throw up his career prospects and remain in this country.  If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects.  If that happens it must reflect upon the happiness and possibly even the stability of this second marriage.  It is to that effect that the court was pointing in the decisions of Poel v Poel[1970] 1 WLR 1469 and Nash v Nash [1973] 2 All ER 704 and it was stressing that it was a factor that had to be given great weight when weighing up the various factors that arise when a judge has to decide whether or not to give leave to take children out of the jurisdiction.'

Ormrod LJ, p 440E: ‘It is, I must say, a proposition which strikes me with some surprise, that a father should seek to hold his former wife in this country in order that she should continue to look after these children here unless it is plainly very important indeed to these children that they should remain here.  It seems to me, looking at this situation not only as a judge but as a human being, that he who puts forward such a proposal has a heavy burden to discharge.  In ordinary human terms it might be thought reasonable to consider the interests of these little boys in a broad sense and with rather more detachment from his own feelings.'

Ormrod LJ, p 443B: ‘The reason why the court should not interfere with the reasonable decision of a the custodial parent, assuming as the court does, that the custodial parent is still going to be responsible for the children, is, as I have said, the almost inevitable bitterness which such an interference ... is likely to produce.  Consequently in ordinary, sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary.  That I believe to be the correct approach'.

EGERTON V WINCHESTER 1983, CA (3.2.83, UNREPORTED)

Father had remarried an Australian and wished to take his 5 year old daughter to Australia where he had settled.  Permission granted.

H v H 1985, CA (7.10.85 UNREPORTED)

The mother of three children aged 13,12 & 7 was a Dutch national and wished to take them back with her to Holland.  In the UK she was living in poor circumstances, had poor employment prospects and had become ‘desperately unhappy'.  Permission was granted.

LONSLOW V HENNIG [1986] 2 FLR 378, CA (Dillon, Lloyd, Nicholls)

Mother with custody wished to take the children aged 12 and 10 to New Zealand.  Her new husband with whom she had two further children had been offered a comparable job in New Zealand to that which he had in the UK but the cost of living was much lower. Father had staying contact every other weekend and during the holidays and saw their paternal grandparents frequently.  Mother proposed that the children should come to the UK every two years and spend about 2 months with father.  Leave was granted on appeal.

Dillon LJ, p 383D: ‘... It is not a question of comparing the wishes of the mother and step-father against the detriment to the children of giving effect to those wishes; it is indeed throughout a question of the children's interests being paramount, in the sense that the court is very frightened of the risk that there may be if the reasonable wishes of the mother and step-father are rejected - that will lead, through their consequent disappointment, to friction and what was described by Ormrod LJ in Chamberlain v de la Mare (1983) 4 FLR 434 as ‘almost inevitable bitterness' between the mother and the step-father or between mother and step-father and the girls'.

Nicholls LJ, p 387B: ‘In cases such as this where a custodial parent reasonably wishes to take the children to live abroad, an important matter to be considered is the unfortunate effect which in any particular case a decision by the court not to permit the custodial parent to give effect to those reasonable wishes may well have in future on the stability of, and the relationships within, the family unit headed by the custodial parent and her husband, and hence on the children themselves as part of that unit.'

BELTON V BELTON [1987] 2 FLR 343, CA (Purchas LJ, Butler Sloss J)

Mother of a 3 year old wished to go to New Zealand with her new husband, a New Zealand national working temporarily in the UK.  The parents had joint custody with father having occasional alternate weekend contact. 

Purchas LJ, p 349F: ‘He concentrated, in my judgment, to a wholly excessive degree upon the importance at all costs of keeping contact between A and her father.  I sympathise and understand where a lay person, such as a father is concerned, the difficulty of reconciliation with the concept of such separation being in the paramount interests of the child in the long term, but the long-term interests of the child revolve around establishing .... a sound, secure family unit in which the child should go forward and develop.'

RE F (A WARD) (LEAVE TO REMOVE WARD OUT OF THE JURISDICTION) [1988] 2 FLR 116, CA (Kerr LJ, Eastham J)

The father instituted wardship proceedings when the mother took the child to Italy for a holiday.  Mother had interim care and father had contact twice a week and on alternate Sundays.  Mother was Italian with only tenuous connections with England; she and father had spent much of the marriage abroad.   The relationship between the parents was very poor with an atmosphere of bitterness. The mother returned the child and then applied to remove the child permanently from the jurisdiction so that she could take up a good job offer managing a hotel in Philadelphia.  She proposed contact visits two or three times a year. The judge refused leave without making any reference to the distress that this might cause the mother, the parent with whom the child lived. The mother appealed.

Held:
The future of the ward appeared to lie with the mother as the parent with primary care of the child. The court's decision was based on the premise that the mother's request was reasonable in all the circumstances and the court had to consider:

1. To what extent refusal would cause unhappiness for the mother.
2. How such an order and unhappiness would affect the child.
3. Whether the decision itself was reasonable.
4. The consequences of refusal.
5. Whether the wellbeing and future happiness of the child were incompatible with allowing the parent leave.

The reasonableness of the proposal had to be considered together with any possible effect of refusal. The trial judge had erred in failing to take the mother's distress into account and was also wrong to consider her decision unreasonable because it was precipitate.   The court also felt that separation might be positive in terms of contact because of the bitter relationship.

Kerr LJ: ‘Applying the authorities, one has to consider to what extent it would cause her unhappiness or distress, or indeed bitterness, if her reasonable desire to move out of the jurisdiction with her child were frustrated by the court, and how such an order, and the unhappiness which it would cause to the mother, would react upon the child.  Finally, one has to consider, if the decision itself is reasonable and a refusal to allow the custodial parent to move out of the jurisdiction would have the consequences to which I have referred, whether the well-being and future happiness of the child would be incompatible with allowing the custodial parent to carry out her wish of taking the child out of the jurisdiction.'

RE R 1989, CA (12.7.89, UNREPORTED)

Mother wished to take her three children of 13, 10 & 5 back to Northern Ireland.  Father had committed an act of arson on mother's house for which he was sentenced to two years in prison.  Mother wished to escape the constant fear & apprehension of further attacks.  Permission granted.

TYLER V TYLER, [1989] 2 FLR 158, CA (Kerr LJ, Ewbank J)

Following divorce the mother had care and control of the children aged 9 & 6 and the father had reasonable contact. The mother sought leave to remove the children to Australia where her family lived and where she had lived from aged 9 to 21. The judge found that there was a close bond between father and children and that the reality was that contact would come to an end if the application was granted.  He held that the mother's wish to remove the children was unreasonable from their point of view (though reasonable from hers). He considered the adverse effect the decision would have on the mother and reasoned that she would cope without adversely affecting the children. The mother appealed.

Held:
The judge had adopted the correct approach. His decision fell within the 'band of reasonableness'.

M V M (MINORS) (REMOVAL FROM JURISDICTION) [1992] 2 FLR 303, CA (Nourse LJ, Cazalet J)

The French mother and English father were divorced with 2 children. The mother sought permission to remove the children aged 13 & 8 to France.  The father was having contact over two weekends with one staying night.  The application was heard with lots of evidence including evidence from the court welfare officer.  The Judge granted the application but did not refer to the evidence of the welfare officer who suggested that the children should stay in the UK with the mother. The father appealed.

Held:
The judge did not take account of the mother's indoctrination of the children against the father. If the move took place this would lead to a withering away of the relationship between the children and the father. This was part of the court welfare officer's evidence. It should have been expressly and carefully dealt with in the judgment. The court could not reach a decision as to what was in the children's best interests without hearing witnesses and so a re-hearing of the mother's application was directed before a judge of the Family Division.

Nourse LJ: ‘The principle to be derived from the authorities is that if the proposal of the custodial parent to remove the children to another country is a reasonable one, leave should only be refused if it is clearly shown that the move would be against the interests of the child'.

RE D (A MINOR) (CHILD: REMOVAL FROM JURISDICTION) [1992] 1 FLR 637, CA (Balcombe, Staughton)

The mother applied to remove the child D from the jurisdiction for a holiday in Turkey. She took all her assets with her and failed to return with the child. Instead she served divorce proceedings, issued in Turkey, on the father. The father made an ex parte application under s.8 Children Act 1989, without notice, for a specific order to return the child to the jurisdiction and a prohibited steps order preventing removal of the child once returned. The judge refused the application, indicating that as the mother had no assets in the jurisdiction it would be unenforceable. The father appealed.

Held:
The mother had been present in the jurisdiction when the original order was made and had given an undertaking to return D. She was therefore within the court's reach despite not having been served and the court had jurisdiction to entertain the application. Even though not directly enforceable against the mother the order made might be of value in Turkish proceedings. The mother would have been able to protect herself if she had been granted leave to discharge the orders. It was therefore neither pointless nor inappropriate to make the orders.

Appeal allowed.

RE K (A MINOR) (REMOVAL FROM JURISDICTION) [1992] 2 FLR 98, Fam Div (Thorpe J)

The American mother of a 3 year old divorced the father a year after their child was born in 1987 after a two year marriage.  Mother had lived in England since 1972.  In 1988 the mother got an interim custody order and an ouster injunction. In 1990 the mother applied to remove the child, then 4, from the jurisdiction so that she could pursue postgraduate education as a mature student. The father was having one day a week contact.  The mother proposed that father could have daily visits when she came to the UK for 3 weeks every summer if leave was granted. Father appealed.

Held:

Courts should generally sanction the realistic proposals of the parent with residence as a factor relevant to the welfare of the child unless inconsistent with it.

However, in this case, contact with the father was only proposed to be once a year. This would prevent the continuation and development of the important relationship with the father. The mother's proposals did not consider the practicalities of the move and were ill thought through. There was concern as to the ultimate welfare of the child, which was paramount.

Thorpe L, p 105-106: ‘The law in this field is relatively clear.  The principles to be applied were established in modern times by the decision of the Court of Appeal in Poel v Poel [1970] 1 WLR 1469, and although there have been a variety of cases since, some decided in one direction, some in another, I do not take them as altering the general principle.  Reference has been made to the more recent decision of the Court of Appeal in Tyler v Tyler [1989] 2 FLR 158, where the intervening cases were reviewed, but I do not take the decision in that case as altering fundamental principles.  Those principles seem to me to be distilled in the proposition that an application for leave to take a child out of the jurisdiction is to be considered on the premise that the welfare of the child is the first and paramount consideration, but that leave should not be withheld unless the interests of the child and those of the custodial parent are clearly shown to be incompatible.  So the approach of the court is to sanction the realistic proposal of the custodial parent, unless that proposal is inconsistent with the welfare of the child.'

p 106G: ‘The reasons, therefore, in summary, which lead me to refuse the wife's application are, first and foremost, because I regard the continuation and development on the upward graphline of the relationship between husband and L as being of very great importance and I think that a proposal which would reduce that contact to something like annual visits would be an extremely retrograde step in the life of this child.  The second reason is that the mother's proposals are so ill-presented that they lead me to real anxiety as to what might happen to L without a firmer foundation.'

M V M (REMOVAL FROM THE JURISDICTION) [1993] 1 FCR 5, (1993) Fam Law 396, CA (Nolan LJ, Hollis J)

Children of 9 & 12 had expressed a wish to stay in England and at their new school and have greater contact with their father rather than go to live in Israel with their mother.   Mother had lived in England since 1979.  Father was Trinidadian.  The CA held that the decision of the judge paid insufficient attention to the wishes and feelings of the children which should be accorded considerable weight and insufficient regard to the disruption to the children's education and language.  Nor had he paid sufficient regard to the views of the Court Welfare Officer that it would be better for the children to stay.

M V A (WARDSHIP: REMOVAL FROM JURISDICTION) [1993] 2 FLR 715, Fam Div (Bracewell J)

The English father and Canadian mother (who had lived in England since 1977) had never married but had two sons, both fluent in French as well as English. The father issued wardship proceedings and subsequently orders were made including staying contact. An agreement was reached for the shared care of the boys although principle residence was with the mother (9 days with mother, 5 with father). The mother sought leave to remove the children to Quebec, Canada. The children wished to remain in the UK.  The Court Welfare Officer did not support the mother's application. The father sought care and control.  

Held:

The mother's application was refused.

The mother's plans were ill thought out and little researched as to work or education. The father played as important a part in the boys' lives as the mother. The move would be detrimental to the children. The present arrangements worked well and it was not appropriate to alter them. The mother wanted to distance herself emotionally and geographically from the father.  The younger child in particular had been so unsettled by the divorce that he required counselling and was a vulnerable child.

There was no need for the father's application for care and control but also no need to continue wardship. Instead wardship was discharged and a residence order in favour of each parent made.

 P 721G: ‘In all the circumstances I reject the mother's application for four reasons:

(1) it is not in the best interests of the children ... whereby they would deprived of shared parenting and the present quality of life they enjoy and need;

(2) the children's wishes against the move are important facts to be balanced in the equation;

(3) the mother's plans are not reasonable nor properly thought out; they are understandable but they are not properly researched;

(4) the mother, on my finding, will be able to accept the decision and act appropriately.'

RE B (MINORS) (REMOVAL FROM JURISDICTION) [1994] 2 FCR 309, Fam Law 11 (Glidewell LJ, Cazelet J)

Mother had remarried and wished to move to France with her new husband and two children aged 12 & 10.  Contact with the father had broken down. Leave was granted because of the ‘seething discontent' that refusal would cause, and because of the paradox that contact was likely to improve if leave were granted.  There were no particular reasons given for the desire to move and the court found that the plans were not well thought out or soundly based.  An order was made for staying contact three times a year.  The Court of Appeal stated that a reasonable plan was not a ‘specific pre-condition' and that the absence of contact with the father made this a wholly unusual case.

Glidewell J: ‘.... The practicalities of the proposal by the parent who makes the application as to the conditions in which the children will live and be brought up abroad, and how and by whom they will be supported, are matters to which the court must give considerable weight in reaching its decision. Those authorities do not, however, establish that if a particular proposal is not so soundly planned or based that the court is satisfied that it is reasonable, this is a conclusive reason for refusing leave.'

RE W [1994] 1 FCR 842, Fam Div (Thorpe J)

Permission granted.  An American mother rof children aged 12 and 9 wanted to move back to Pittsburgh.  Blood tests showed that the unmarried respondent was not in fact the biological father although the children regarded him as such. At a previous hearing (Re WB [1995] 2 FLR 1023) Thorpe J in order that the matter could be properly argued, had overturned the decision of the magistrates who had refused to make a prohibited steps order preventing removal.  He granted leave: the mother was American and would have family support in the US.  Although she could not guarantee precise arrangements for job and schools, sensible plans were well underway and her general intent and capability was established.

S (RESIDENCE ORDER: FORUM CONVENIENS) 1995 1 FLR 314, Fam Div, Thorpe J

This case concerned a mother who had been granted permission to go to Holland and had given an undertaking to return the children to the UK if ordered to do so.  Thorpe J commented that the conventional undertaking to return the child to the jurisdiction if ordered so to do, had for many years automatically been extracted from any successful applicant for leave to take a child permanently from the jurisdiction.  It had undoubtedly a useful function in the days when the movement of children across international boundaries was not regulated by international convention and statute as today. But in the age that succeeds the Hague Convention, the Child Abduction and Custody Act 1985 and the Family Law Act 1986 the conventional undertaking does not generally have any surviving use or function.  There may be cases in which it will still be appropriately sought, but it should no longer be automatically sought and certainly not unless there is some specific justification.

H V H (RESIDENCE ORDER: LEAVE TO REMOVE FROM JURISDICTION) [1995] 1 FLR 529, CA (Staughton LJ, Wall J)

The mother took the child of 3 to Sweden. The father obtained an ex parte residence order. He then took proceedings under the Hague Convention and as a result the mother was ordered by a Swedish court to return the child to England. The mother returned to the matrimonial home and awaited determination of the residence order. A judge granted the mother residence and gave leave to remove the child back to Sweden. The father appealed on the following grounds: the court was wrong to hold that it was bound by authorities and should have applied CA 1989 criteria, the judge had failed to apply the welfare checklist and had not taken account of the damage removal would do to the child.

Held:
CA 1989 had not altered the underlying factors that needed to be taken into account but merely emphasised the welfare checklist. The trial judge had properly carried out the balancing exercise necessary to reach a conclusion and no fault could be attributed to the decision reached.

Appeal dismissed.

Wall J , p 530B: ‘The Children Act 1989 has not altered the underlying factors which need to be taken into account in deciding whether or not a parent should be given leave to remove a child from the jurisdiction.  I respectfully agree with Bracewell J in the case of M v A (Wardship: Removal from Jurisdiction) [1993] 2 FLR 715 that the implementation of the Children Act 1989 has not changed the test but merely emphasised that the checklist is to be applied when considering welfare.'

MH V GP (CHILD: EMIGRATION) [1995] 2 FLR 106, Fam Div (Thorpe J)

The child of 4 lived with the mother, the father had contact on alternate Sundays.  The parents had not been married. The mother wished to emigrate to New Zealand.  The mother proposed an annual contact. The father thought it crucial that child had contact with him so sought an order for staying contact and a prohibited steps order preventing the child's removal to New Zealand.

Held:
The interests of the child and the mother were incompatible. The child's best interests are the paramount consideration. On the facts of the case the father's application was in the child's best interests. Such applications do not have to heard in the High Court but should be transferred for determination depending on the complexity and difficulty involved.

P 110G: ‘.... The welfare of the child was the first and paramount consideration but that leave should not be withheld unless the interest of the children and those of the custodial parent were clearly shown to be incompatible. That statement of principle creates a presumption in favour of the reasonable application of the custodial parent but in weighing whether the reasonable application is or is not incompatible with the welfare of D, I have to assess the importance of the relationship between D and his father, not only as it is but as it should develop. The doorway through which D relates to other members of the family, particularly his half-sister L, his paternal grandmother and his paternal first cousins.  That is the crux of this case.  This is not a case in which the decision turns on the reasonableness of the mother's proposals'

RE WB (RESIDENCE ORDER), [1995] 2 FLR 1023, Fam Div (Thorpe J)

See above for summary of subsequent decision in this case.

The mother and father had 2 children aged 8 & 11. The mother left home and for 6 months care was shared.  Subsequently father had alternate weekend staying contact.  The father applied ex parte for a prohibited steps order to prevent the mother removing the children from the jurisdiction. The mother was stopped at the airport and an interim residence order was granted to the father. Tests then showed that he was not the biological father, following which a residence order was granted to the mother and staying contact to the father. He appealed on the grounds that;

1. No order was made concerning removal from the jurisdiction.

2. There had not been a shared residence order.

Held:
Anything which supported the justices' order should be contained within their stated reasons and they should not solicit general guidance from the appellate court. The children should not have had the status quo upset, a prohibited steps order should have been made. However, the second ground for the appeal failed on merit.

Appeal allowed in part.

P 1028B: ‘The need for mirror orders in order to preserve the security of the parent with primary responsibility, as well as the security of the parent with contact rights, co-operation and sometimes direct communication are commonplace.'

RE T (REMOVAL FROM JURISDICTION) [1996] 2 FLR 352, 3 FCR 97, CA (Butler-Sloss, Thorpe LJJ)

After the parents' marriage dissolved, the child of 3 lived with the mother and had alternate weekend contact with the father as well as weekly overnight contact with the grandparents. The mother formed a relationship with a Frenchman and applied to remove the child to France. The father applied for a residence order. The mother said she would go to France in any event but had changed her mind by the time of the hearing and said she would not leave the jurisdiction without the child. The judge found the mother's application ill-conceived and granted a residence order in favour of the father. The mother appealed against the order.

Held:
Mothers who are generally competent should not risk losing primary care of their child just because they have made an unsuccessful attempt to remove them from the jurisdiction. The judge had failed to see that the father's application for residence had been defensive in nature.   Residence should not have been transferred: the mother's evidence was that she would not leave the country if her application was refused.

Thorpe LJ, P 355E: ‘It must be questionable whether he had in mind the general proposition that the parent with primary care is entitled to select the place and country of residence of the child unless that selection is plainly incompatible with welfare'.

RE S (MINORS) CA 2/4/96 (Beldam, Waite, Henry LJJ)

Mother appealed against an order refusing her permission to retain her two daughters aged 3 ½ and 18 months in Malawi.  Mother came from Malawi but was a British citizen, came to the UK in 1988 and bought a council flat.  Father was originally from Greece but also had British citizenship.  In 1995 mother went with the girls on holiday to Malawi and was joined there by the father.  She did not bring the children back to the jurisdiction and the father applied for an order for their return.  The judge found the mother to be an unreliable witness and that her plans for the girls' long-term future were uncertain and ambivalent.  She was proposing to return the children to the UK for contact once a year.  He declined her application and ordered her to return the children to the UK.  The Court of Appeal upheld his decision.  The mother had made no real plans and could not even say whether she intended to remain living with her parents or how she might survive financially.

Waite LJ: [Referring to Poel and Chamberlain] ‘I would make two comments about those authorities.  First of all, they are not to be elevated to the level of some test with an immutable quality which is to be applied to every case.  They simply embody the human consideration to which I have already referred and seek in appropriate circumstances to give effect to.  They are authorities, moreover, which now, since the coming into force of the Children Act 1989 need to be regarded with reservation.  That implies no criticism of their reasoning; it simply recognises the fact that they were decided at a time when rights of parenthood were governed by the legalistic concept of custody and it was common form to speak, as the judges in those cases do, of custodial and non-custodial parents.  Custody is a concept which the Children Act has swept away.  Notions of custody with its legalistic and proprietary overtones are now replaced with an approach which sees parents as sharing responsibility equally for the upbringing of their children; although in the nature of things, especially when the children are young, one parent is likely to be the primary, and the other the secondary, carer.  Even accepting, however, that the principle survives in a suitably modified form today, it is a principle, as the authorities make clear, which only applies where the primary carer comes before the court with some definite and reasonable proposal to justify transfer of the children to another jurisdiction.

RE E (RESIDENCE: IMPOSITION OF CONDITIONS) [1997] 2 FLR 638, CA, Butler-Sloss, Saville & Thorpe LJJ

The court at first instance decided that the children aged 11 & 6 should live with the mother, with contact to the father, but imposed a requirement under s 11(7) of the CA 1989 that the children should continue to reside at a particular address unless otherwise ordered or agreed to by the father.  The mother had been born in Blackpool where she still had family.  She and the father had lived in London where he had family.  She wished to return to the Blackpool area.

Held:

A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is an unwarranted imposition of the right of the parent to choose where he / she will live within the UK or with whom.  There may be exceptional cases, for instance, where the court, in the private law context has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer but there is no better solution than to place the child with that parent.  The court might consider it necessary to keep some control over the parent by way of conditions which include a condition of residence.  The correct approach is to look at the issue of where the children will live as one of the relevant factors in the context of the cross-applications for residence and not as a separate issue divorced from the question of residence.  If the case is finely balanced, the proposals put forward by each parent will assume considerable importance.  If one parent's plan is to remove the child against their wishes to a part of the country less suitable for them, it is an important factor.

In this case the facts pointed firmly to the conclusion that the children should live with their mother and the advantage of remaining in London is outweighed by the other factors leading to granting a residence order to the mother.

RE R (MINORS) CA 16.12.97 (Simon Brown LJ, Hale J)

The court at first instance made an order granting residence of two children (10 & 5) to their mother, implicitly granting her application for permission to take them with her to live in Germany.  By the time the case was before the Court of Appeal the mother had in fact done so and had started school in Germany.  There had been some contact to father.  Mother was a Swiss national.  Father held British, Irish & Swiss nationality.  For a time both mother and father cared for the children in England and Switzerland and they were also cared for by the grandparents.  Later the parents alternated, one caring for the children in England while the other worked in Switzerland.  Eventually mother met another man who worked in Switzerland but lived in Germany.

Held:

The Court of Appeal declined to interfere with the judge's implicit decision allowing the mother to go to Germany.  The youngest child was very attached to her and should not be separated from the eldest.  The father was less well placed to care for the children and would be more reliant on external help.  Such disruption to the eldest child's education by removing him to Germany had already taken place by the time of the appeal.

RE H (APPLICATION TO REMOVE FROM JURISDICTION) [1998] 1 FLR 848, CA (Thorpe, Pill LJJ)

The German mother of a 5 year old had remarried an American and wished to live in the US.  The father had played a large part in caring for the child while mother was out at work from the age of 6 months to 3. The parents then separated and shared care.  When the child began school, home base was with the mother and the father had fortnightly staying contact.  Permission was granted to the mother although the court commented that it was ‘close to the knife's edge'.

Thorpe LJ, 853D:

‘It seems to me important to emphasise that these applications for leave are always difficult cases that require profound investigation and judgement. But not a lot is to be gained by seeking support from past decisions, however, superficially similar the factual matrix may appear to be.  In my judgment, the approach that the court must adopt in these cases has not evolved or developed in any way since the decision of Poel v Poel [1970] 1 WLR 1469.  Later cases, such as Tyler v Tyler [1989] 2 FLR 158 have sought to analyse and review the whole field of subsequent case-law, but they do not seem to have added anything to the jurisprudence.'

Thorpe LJ specifically approved the remarks quoted from Chamberlain v de la Mare (1983) 4 FLR 434 (see above).

RE K (APPLICATION TO REMOVE FROM JURISDICTION) [1998] 2 FLR 1006, Fam Div (Charles J)

Both parents were from prosperous Nigerian families. They had two children, one in 1989 and one in 1991, aged 9 & 7. They divorced in 1996. The mother had residence and the father had contact. The mother applied for leave to remove the children from the jurisdiction as she wanted to take them to Nigeria where she could be with her family and her new boyfriend and continue her career as a teacher. The father made an application opposing this and during proceedings things became increasingly acrimonious.   The mother said she would go to Nigeria even if she were prevented from taking the children with her.

Held:
In determining leave to remove from the jurisdiction, the court should consider all the facts including the welfare checklist in s.1 (3) of CA 1989. The welfare of the children is paramount. Adverse or significantly different living conditions in Nigeria had to be taken into account in looking at medium and long term welfare of the children.  ‘However, I prefer to take it into account as part of the general consideration of the welfare of the children because: (i) it may well be perfectly reasonable for the custodial parent to wish to live in a different, adverse and potentially more dangerous environment when this could in all the circumstances of a given case be contrary to, or incompatible with, the welfare and best interests of the children, (ii) elements of the presumption, and importantly the reasoning that underlies it, would still apply and even when no adverse conditions exist in respect of the country to which the custodial parent wishes to take the children the presumption can be displaced, and (iii) in my judgment an attempt to consider the effect of any adverse conditions on a discreet basis under such heads of argument would be artificial.'

In the circumstances the court granted leave, having considered all the likely effects that granting or refusing the application would have.   The children would be significantly damaged if left by their mother, and if she stayed she would be resentful and bitter.

RE T (STAYING CONTACT IN NON-CONVENTION COUNTRIES) [1999] 1 FLR 262, Fam Div (Hughes J)

T had an English mother and an Egyptian father. They lived in Cairo until the marriage fell into difficulties in 1994 when the mother moved to England with the child. The father visited from time to time and saw the child. He later removed the child to Egypt without leave and, under proceedings brought by the Hague convention, the child was returned to England. The father applied for wardship proceedings and asked the court to decide where the child should be resident and with whom and what contact should be ordered if the child were to remain in UK.

Held:
1. The child should remain a ward of court during minority or until further order and should reside in England with the mother.

2. There should be contact with the father, including holiday contact in Egypt after compliance with detailed provisions including that:

a. The child should live with the mother;

b. The child should leave Egypt after any contact and the father should not obstruct this;

c.  A mirror order was to be applied for in Cairo.

NB Of interest for the specific nature of the orders sought.

C v M (Children) 30 July 1999 CA (Thorpe LJ, Sir Oliver Popplewell)

The mother came to the UK from the Republic of Ireland in 1987 and married the father. They had a daughter of 8.  The father had extensive contact to the child after their divorce.  Mother had a relationship with another man and had a second daughter of 5 who also had extensive contact.  The extent of contact to each father amounted arguably to shared care. She applied for permission to take both children back to her home city of Cork.  The court welfare officer recommended that the application should be refused with residence being granted to the respective fathers if the mother returned to Ireland.  The judge at first instance nonetheless granted her application. 

Held:

The classic approach of the court in Poel and Chamberlain is only to be applied in those cases where there is a relatively clear definition of roles between the parents into primary carer or custodial parent and secondary carer or contact parent.  In this case the roles were not clearly defined and the arrangements between the parents which had been evolved consensually and naturally over time were very close indeed to equality, certainly close to equality of time, if not close to equality of labour.  In a case in which the children are so reliant upon a division of their lives between two adjacent homes the child's sense of security is heavily dependent on the ready availability of each of those homes.  In that situation it is very easy to see that however strong may be the mother's internal desire to return to her homeland, such a plan is almost certain to impact adversely on the child's sense of security and thereby on the child's welfare.  The judge had not given this sufficiently serious consideration and had failed to explain his reasons for rejecting the clear and strong recommendation of the court welfare officer.  There was evidence too that the children were expressing real distress at the prospect of losing the relationship with their natural fathers and the extended family.

Link to Bailii judgment

RE S (REMOVAL FROM JURISDICTION) [1999] 1 FLR 850

Mother wished to return to Chile where she had family and employment prospects.  The child's future clearly lay in the care of the mother.  Permission granted on condition that £135,000 be held as security until a mirror order could be put into effect in Chile.

RE A (SECURITY FOR RETURN TO JURISDICTION) (NOTE) [1999] 2 FLR 1

The child A lived with the Saudi Arabian mother. The mother sought leave to take A to Saudi Arabia for a month's holiday. The father opposed this.

Held:
The mother's application was bona fide but Saudi Arabia is not a signatory to the Hague Convention. Therefore, further security was required and it was deemed appropriate that the mother should swear before a Sharia judge on the Quran that she would return and that nothing would be done to prevent the child from returning to the jurisdiction.

RE M (LEAVE TO REMOVE CHILD FROM JURISDICTION) [1999] 2 FLR 334, Fam Div (Hale J)

A Bulgarian father and Nigerian mother along with their child sought asylum in the UK. They then divorced. The father's application for asylum was refused. The mother sought leave to remove the child to Canada where she wished to apply for permanent residence. The father did not consent to the removal. He had visiting contact at a contact centre on alternate Saturdays and the relationship with his son was not particularly close.   The mother said that her computer skills would be in demand in Canada and that her application was likely to be accepted. However she could not supply the court with the concrete proposals that would normally accompany such an application. She could not make an application to the Canadian authorities unless she had leave to remove the child. It seemed likely that contact would be a couple of times a year.

Held:
A residence order was made in the mother's favour and conditional leave was granted to remove the child from the jurisdiction.

No residence order was in place at the time of the application so it was correctly made under s.8 rather than s. 13(1) CA 1989. Either way the court could attach conditions (to the effect that mother should notify father immediately on hearing whether her application for permanent residence in Canada was successful and should inform him of her contact proposals at least three months before departing from Canada).

It was in the best interests of the child to allow the mother to apply for Canadian residence and permit the move should it prove possible. The father did not have a close relationship to the child and had shown a lack of understanding for her needs.

Speculative applications for leave would only be granted if there were good reasons and the court was satisfied that they were made with good sense and responsibility. Given the inchoate nature of the application it would be subject to reasonable contact proposals.

P 345A: ‘I should say that my conclusion in this case should not be seen as carte blanche for other speculative applications for leave to remove.  Such an application is only likely to be granted if there are good reasons for making it at an early stage and the court can be satisfied of the good sense of the parent making it'.

RE K [1999] Family Law 220, 1 FLR 583 (Hirst LJ, Cazalet J)

The Indian parents of a 2 year old child made their home in England.  On separation, the mother left the child with her parents in India while she returned to the UK to pursue a divorce.  The father's attempts to see the child in India were frustrated by the mother's family and she was required by court order in wardship proceedings to return to the UK.  Only after her return was father able to have contact.

The judge made an unusual order granting residence of a very young child to the father because of the risk that the mother would find a way of taking the child to India if the child had his home with her.  He found the mother to be untrustworthy and unreliable.  The Court of Appeal declined to interfere with a decision which was well within the scope of the judge's discretion.

RE K (REMOVAL FROM JURISDICTION: PRACTICE) [1999] 2 FLR 1084 (Thorpe LJ, Popplewell J)

The father was from Bangladesh and the mother from Russia. Following their divorce the father was the child's main carer. The father received indefinite leave to remain in the UK and then sought to take the child to Bangladesh for a holiday. The mother opposed this. Due to delay the matter was heard by a s. 9 Judge who granted the father leave without hearing oral evidence. The mother appealed saying that the decision had been made without considering mirror orders or jurisdiction in Bangladesh.

Held:
The application had not received the thorough consideration usually needed in such cases. No oral evidence was given.  The father's record, which should have been explored in oral testimony, was only relevant to the risk of breach and not to the magnitude of the consequences of breach.  A court should look at expert evidence about mirror orders or notarised agreements.  Where the consequences might mean irretrievable separation from a child from their previous roots, then all practical safeguards should be examined, particularly when considering leave for even temporary removal to a non-Hague Convention country. Further applications of this sort should be heard by a judge in the family division (and not by a Deputy as here).

B (CHILDREN) 2000 CA, LTL 5.7.00, [2001] 1 FCR 108 (Schiemann, Thorpe LJJ)

The mother had 2 children with the father. The marriage broke down and the mother met then later married Mr J in 1999. An application by the mother for removal of the children to Denmark was refused. The judge found the mother's request reasonable and thought through but rejected the application on the grounds that it would adversely affect contact with the father and in doing so would have an adverse effect on the children. The mother had said that she would remain in the UK if leave were refused. The judge considered the case by considering what the family situation was likely to be in 12 months' time and concluded that it was likely that there would be minimal contact.  In the judge's view the mother's reaction would not override the general assessment of what was in the best interests of the children. The mother appealed.

Held:
The trial judge's '12 month test' was not based on authority.  The judge should have compared the impact on the children's welfare if the application were granted with the impact on them if it were refused. There was sufficient judicial convergence to make resort to the courts in Denmark viable (both states being signatories to the 1980 Convention), should contact be frustrated. The judge could have buttressed future contact with strong orders and sufficient regard was not given to the effects of a refusal on the mother's ability to provide for the children.

Appeal allowed.   The parties were invited to agree terms as to contact and to consider establishing a travel trust.

RE P (A CHILD: MIRROR ORDERS) [2000] 1 FLR 43, Fam Div (Singer J)

The mother had UK and American nationality. The father was Iranian with no right of entry to the USA. The mother took the child to the USA and started divorce proceedings. A US court made orders regulating contact and sought mirror orders in England. The mother was to bring the child to the UK for one week every October for contact. The concern before the court was whether a mirror order was consistent with the court's powers and jurisdiction.

Held:
The child was not habitually resident in the UK as required by s. 8 or s. 3(1) of CA 1989. However, there was no doubt that Parliament would not have wished to frustrate a potentially beneficial procedure. As a matter of common sense there should be the ability to make the kind of order sought, especially as English judges frequently invited foreign courts to make such orders.

Mirror orders were only intended to have effect while the child was in the jurisdiction. The order would cease to have effect once the child was removed from the jurisdiction. Investigation as to the need for such mirror orders should be reserved to judges of the Family Division.

RE A (PERMISSION TO REMOVE CHILD FROM JURISDICTION: HUMAN RIGHTS) [2000] 2 FLR 225 (Ward, Buxton LJJ)

Mother was granted permission to remove the children from the jurisdiction.  Father appealed on the basis that the order resulted in a breach of his right to family life under Article 8 of the European Convention. 

Held:

The father's article 8 right to a family life had to be balanced against the Article 8 right of the mother to a private life.  The current test being applied, that is that if the parent with care was making a reasonable decision, the court should not normally interfere with it unless there was some compelling reason to do so, was not in conflict with the ECHR.

RE C (LEAVE TO REMOVE FROM JURISDICTION) [2000] 2 FLR 457, CA (Morritt, Thorpe, Chadwick LJJ)

The mother applied for leave to remove the child of 6 to Singapore where her new husband came from.  He had come to the UK to qualify as a Doctor but wished to return to his home country where he had employment and family.  The mother's evidence was that she would remain in the UK if the application was not granted.  The judge declined her application on the basis of the detriment to the relationship with the father given the reduction in contact which would be entailed.  The Court of Appeal (Thorpe LJ dissenting) declined to interfere with the Judge's decision.  The majority decision was that the judge had not misdirected himself in any important way so as to justify an interference with his conclusion even though a different tribunal might have reached a different conclusion: ‘This difficult and finely balanced decision was for the judge to make.  Because it was difficult and finely balanced, it is the more important that the decision should be respected.  In this field of jurisprudence, these decisions have properly been entrusted to the judge who hears the application.  The judge had the advantage of seeing and hearing the parties concerned.  It is not for this court to substitute its own view for that of the judge.'

RE L (REMOVAL FROM JURISDICTION: HOLIDAY) [2001] 1 FLR 241, Fam Div, Connell J

Mother made an application to take the child of 3 ½ on holiday to the United Arab Emirates, where she had been before, including with the child, during the parents' relationship including at one point when the fractures in the relationship were already apparent.  The parents were involved in a residence dispute which had not been decided.  Mother wished to take a holiday to see members of her family and in all probability this would include the maternal grandparents.  Father was concerned that the mother would not return the children to the UK.

Held:

The court found that the mother's desire to go on holiday with the child, her commitment to an ongoing relationship between the father and the child and her commitment to return to the UK were all genuine.  There was a benefit to the child in taking a holiday so that he could spend time with his extended family and be away from the arena of the dispute between the parents.  Time had run out to put mirror orders in place.  To reassure the father and to secure the mother's compliance various conditions would be imposed including that the mother should deposit a £50,000 bond with the court, she would give an undertaking to return by a specific date, she would make a declaration  on the Koran at a suitable religious venue that she would return, her father and eldest brother would do the same in another jurisdiction and she would provide journey details and copy tickets to the father.

RE J (CHILDREN) (RESIDENCE: EXPERT EVIDENCE) [2001] 2 FCR 44, CA, Hale, Arden LJJ

A mother appealed against the decision of the judge to make a residence order in favour of the father who planned to live in England as opposed to a residence order in her favour, when her plan was to go and live in France.  The parents had an extremely acrimonious separation and findings of domestic violence had been made against the father.  The expert evidence and that of the Cafcass Officer had recommended that the children should live with the mother, even if she were to move to France.  The mother had been the primary carer. It was not suggested that the mother would not promote contact, whereas there were such doubts about the father and indeed mother had had very limited contact between the initial decision and the appeal hearing.  There was evidence of father undermining the mother in front of the children. There was well-founded evidence casting serious doubt on the father's ability to meet the children's emotional needs.  The Court of Appeal allowed the mother's appeal and remitted the case for rehearing by a s 9 Judge.  The judge had failed to express his reasoning in his judgment and failed to explain why he had departed from the expert evidence.  It is impossible in deciding which parent the children are to live with, to ignore the plans of each of those parents and to ignore the likelihood, if such it be that one of them will eventually be permitted to take the children out of the country. The court should have first established who should be the resident parent and then go on to consider the question of removal from the jurisdiction.  Within that primary issue of residence were important questions about which parent was best able to meet the children's physical, emotional and educational needs and the effect on the children of any change in their circumstances. 

PAYNE V PAYNE (2001), EWCA CIV 166, [2001] 1 FLR 1052 (Dame Elizabeth Butler-Sloss P, Thorpe and Robert Walker LJJ)

The mother was a New Zealand citizen and applied to remove child from the jurisdiction to live permanently in New Zealand. Mother and child were required to return permanently to the UK following proceedings brought by the father under the Hague convention. Following their return the father had very good staying contact with the child. The father then sought a residence order and opposed the mother's application for leave to remove the child from the jurisdiction. The mother was granted leave and the father appealed stating that any presumption in favour of the applicant at common law breached the ECHR, incorporated into UK law by HRA.

Held:
1. There was no conflict between domestic case law and the ECHR or the CA 1989.

2. The proposition that refusal of a primary carer's reasonable proposals for the relocation of the family would impact detrimentally on the welfare of her dependent children did not amount to a presumption in favour of the primary carer. The welfare of the child was always paramount.

3. The court should ask a series of questions in evaluating an application:

(i) is the carer's application genuine ie not motivated by a desire to exclude the other parent from the child's life? 

(ii) is the application realistic ie founded on practical proposals both well researched and investigated?

(A negative conclusion on (i) & (ii) is likely to result in the application being refused)

(iii) What is the basis of the father's application?  Is it motivated by genuine concern for the future of the child's welfare or is it driven by an 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 be offset by extension of the child's relationships with the maternal family and homeland?

(iv) What would be the impact on the carer, either as a single parent or partner in a new relationship, of a refusal of her realistic proposal?

(v) What is the overall impact on the welfare of the child taking into account the above considerations and other relevant criteria from the welfare checklist?

NB The President cited the passage quoted above of Griffiths LJ in Chamberlain v De La Mare with approval.

Thorpe LJ: 'Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal on the mother's future psychological and emotional stability.'

Link to Bailii judgment

RE X AND Y (LEAVE TO REMOVE FROM JURISDICTION: NO ORDER PRINCIPLE) [2001] 2 FLR 118, Fam Div, Munby J

Mother wanted to return to her country of origin in Europe with the children, aged 5 & 7.  Father opposed her application and wanted the children to remain in London.  He made an application for a residence order but indicated that he would not pursue this unless the mother's plans continued to involve removal.  The mother made allegations of sexual abuse by the father and although she agreed that he should have contact, she said that it should be supervised.  Munby J conducted an extensive review of the authorities on leave to remove and considered the relevance to applications for leave to remove of the no order principle. 

Held:

Dawson v Wearmouth [1999] 1 FLR 629 provided authoritative guidance on the meaning and effect of s 1(5) (the no order principle) which placed the burden on the party applying for an order to make out a positive case that on the balance of probabilities it was in the interests of the child that the order should be made.  It should not be made unless there was evidence establishing that the order would lead to an improvement from the point of view of the child's welfare.  In considering an application for leave to remove a child from the jurisdiction it was the duty of the court to apply both s 1(1)(a) (welfare is paramount) and s 1(5) (the no order principle).  The question for the court was whether the applicant parent had established that, having regard to the medium to long-term welfare fo the child, and applying the welfare checklist ins 1(3), the child would be better off living abroad than living in the jurisdiction.  It remained the case that the wish of the custodial parent to remove a child from the jurisdiction would always be a relevant factor, typically of very great weight.  The court granted mother's application but did not find that sexual abuse had been proved and granted father unsupervised contact to the children, including staying contact, and parental responsibility.

RE S (LEAVE TO REMOVE FROM JURISDICTION: SECURING RETURN FROM HOLIDAY) [2001] 2 FLR 506, Fam Div, Hogg J

The father made an application for contact and a prohibited steps order regarding two boys. The father was a British citizen.  The mother was born in India and retained Indian nationality but had permanent leave to remain in the UK having come to the UK for the marriage. The mother who had applied for residence also applied to take the children to India for a holiday. There were allegations that the maternal grandfather would ill-treat the boys and that the family would try to keep them in India. The mother offered a number of undertakings.

Held:
1. Significant harm would come to the children if the mother acted dishonestly and did not return the children to the jurisdiction after the holiday. However, the father's allegations were not made out and the mother's intention to return was deemed genuine.

2. The mother's application would therefore be granted subject to an undertaking to return the boys to the jurisdiction by a certain date.  The mother also undertook to provide extensive information about the flights, accommodation in India, telephone numbers, copy visa applications, not to seek Indian passports or citizenship for the children, and seek only a short-term visa for them.   Other orders were made including the children being made wards of court with a declaration made that they were habitually resident in England and Wales and were British citizens.  The orders were required to be served upon the Indian High Commission & the FCO for onward transmission to the British High Commission in Delhi and other relevant consulates.

RE H (CHILDREN) (RESIDENCE ORDER: CONDITION) [2001] EWCA Civ 1338, [2001] 2 FLR 1277 (Thorpe LJ, Astill J)

Father, holder of a residence order in relation to two children of 10 & 5, applied for permission to take the children to Northern Ireland.  The children remained with the father when the mother left the family home when they were 6 and 2 to make a career for herself.  She was successful in that endeavour but was dependant on alcohol.  The father gave up work to care for the children.  When the father informed her of his plan to return to Northern Ireland the mother applied for a residence order and a prohibited steps order to prevent the removal.  The court found that the mother was a more suitable person to care for the children, subject to her being cured of alcoholism.  The court was also concerned that the motivation of the father was more to do with thwarting mother's application for residence or out of spite.  The father had spent very little time in Northern Ireland when he was 16 visiting no more than annually.  He had no accommodation arranged and no employment although he was likely to be able to organise both.  The father was granted interim residence, with extensive contact to the mother.  At a subsequent hearing it became apparent that the mother had not achieved abstinence from alcohol and the father was granted full residence but the mother's application for a prohibited steps order was granted. 

Held:

The father's appeal was refused.

The UK included Northern Ireland and therefore this was a case concerning internal relocation rather than external relocation and as such the test to be applied was less stringent.  There were clear policy reasons why this was so.   However, even relocation within the UK could be highly problematic and subject to challenge by an application for a prohibited steps order or for the imposition of a condition to the residence order.  In making its decision the court should apply the welfare test.

The decision of Munby J in Re X and Y (Leave to Remove from the Jurisdiction: No Order Principle) [2001] 2 FLR 118 should not be followed.  It was decided just before Payne which was to be preferred.  No order was simply not an option when faced with competing applications.

The impact on the children of being deprived of their regular contact to the mother would be akin to a bereavement.  The effect on the mother would be devastating and potentially capable of tipping her back into alcoholism.  This in turn would be devastating for the children.

Link to Bailii judgment

T V R (2001) FAM DIV (CHARLES J) 2/11/2001

In 1998 the mother removed the child from Sweden without the father's knowledge or consent. At that time the father had little contact with the child and there was a Swedish court order in force giving the mother sole custody. Therefore, the removal was neither unlawful in Swedish law nor wrongful for the purposes of Art.3 Hague Convention. On 1st  November 2000 the Court of Appeal for Scania and Blekinge gave the father sole custody ('the November 2000 order') and on 28th  December 2000 the Swedish Supreme Court found that there were no grounds to grant the mother leave to appeal against the November 2000 order. The effective difference between the rival contentions was that the father wanted the child's future to be determined by the Swedish courts whereas the mother wanted that future to be determined by the English courts.

Held:
1. The mother had taken an active part in the Swedish proceedings and it was clear that the Swedish courts applied substantially the same principles as the English courts to the issues of custody and access.

2. In the context of the European Convention, the words "the effects of the original decision" in Art.10 (1) (b) of the European Convention were a reference to the effects of its enforcement without delay, review or amendment by the state addressed.

3. It could not be said that a move to Sweden was manifestly no longer in accordance with the child's welfare in the medium to long term.

4. This was not a case in which the court would restrain the father from pursuing proceedings in Sweden. Even if England was the natural forum, Sweden was the more appropriate forum. Substantial justice would be done in both jurisdictions and there were no other reasons why justice required the issues of residence and contact to be decided in England.

5. The court adjourned the application under the 1985 Act and the European Convention. The primary onus was on the mother to initiate proceedings in Sweden to enable the Swedish court to review the November 2000 order, because it was she who wanted that order to be changed. This court would not order the child's immediate return to Sweden until a Swedish court had had the opportunity to consider the case further on an inter partes basis.

6. This court exercised its inherent jurisdiction to order, on the father's offered undertaking, the child's return to Sweden, but stayed that order for 28 days.

RE A (A CHILD) 2002

The parents married in April 1998 but separated soon after. Contact arrangements were put in place with the father. However, in July 2000, without consent of the father, the mother removed the child from the country to Nigeria. The mother returned to the United Kingdom in September 2000 but the child remained in Nigeria. The child was made a ward of court and a number of orders were made against the mother requiring his return. Clear warnings were made to the mother that if she did not comply with these requirements she would be imprisoned. The mother failed to comply with the orders and sought to show that she did not have the finances to return the child. The judge sentenced her to ten months' imprisonment. The mother appealed.

Held:
1. The simple key to the outcome of this appeal was the clear finding made by the judge as to the mother's credibility. The judge found that the mother was not a truthful witness and she was very critical of the mother's evidence as to her financial circumstances. The judge simply did not accept the mother's evidence.

2. With those findings of the judge setting the case in its proper context, this was a mother who was in a deliberate attempt to frustrate contact by removing the child from the reach of the court and the father. When subjected to due process the mother effectively played games with the court and made no effort to comply with orders to which penal notices were attached.

3. In those circumstances it could not be said that ten months' imprisonment was excessive.

Appeal dismissed.

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L V L (2002) [2002] EWHC 2577 (FAM), [2003] 1 FLR 900, Fam Div (Johnson J)

Application by a mother for leave to remove her children from the UK to live with herself and her new husband in the USA. The children, born in 1989 and 1990, had lived with their mother since their father left home in 1999. The mother remarried in 2002 and her new husband was offered advantageous employment in the USA. The mother wished to remove the children to live in the USA. The father opposed the application on the grounds that: (i) the children would miss the frequency of contact with him, and (ii) since the daughter had a learning disability, the move would be disadvantageous to her because she was well settled in her current school in the UK.

Held:
1. The independent professional witnesses had overstated the risk inherent in the daughter's removal to the USA and attached insufficient weight to the role of the mother who had been outstanding in her care of and commitment to her daughter.

2. In the USA step-by-step programmes would be provided for various aspects of the daughter's development and the facilities on offer were as good as or better than her present arrangements.

3. Considering both the children's wishes and the father's opposition, the court concluded that the mother's proposals were in the best interests of the children.

The mother's application was granted. The father's application for residence was refused.

RE R (A CHILD) 2002, CA, 26/6/02 (Thorpe LJ, Wall J)

R was born on 16th August 1993 after her parents' relationship had broken down. R lived with the mother and it was agreed that there should be contact between R and the father. The judge had previously granted the mother permission to remove R permanently from the jurisdiction subject to conditions provided in an undertaking dated 3rd December 2001 whereby the mother would allow contact between R and the father for, inter alia, three weeks during the summer holidays, consisting of two consecutive weeks and a further single week. The father submitted that he should be allowed contact for three consecutive weeks in August when the father's other children had their school holidays. This was refused and the father appealed.

Held:
1. The father's application to change the terms of the undertaking was made at a late stage. It was difficult to see how the judge's approach to the problem could be faulted. He was faced with a difficult decision that had to be made at short notice in difficult circumstances. The judge's decision, made speedily as it was, was not one with which the appeal court should interfere.

2. Equally, the costs order should not be interfered with. While such orders were unusual in cases of this nature, the mother had put forward proposals that were acceptable to the judge and the father was now seeking to move the goalposts. Such costs orders were at the judge's discretion.

Appeal dismissed.

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RE S (A CHILD) 4/12/02, EWCA Civ 1795,  President, Waller, Laws LJJ

The mother of a child of 9 ½ appealed against an order imposing a condition on a residence order that she should not move to Cornwall where she wanted to set up home with her new partner, whom she planned to marry.  The child had a significant disability, suffering from Downs Syndrome with associated heart & respiratory problems.  She had a limited life span and moderate learning difficulties.  She enjoyed regular and frequent contact with her father and her paternal grandmother.  The family all lived in South London.  Mother had always cherished a wish to move away from London and her housing was unsuitable.  Her new partner who she met when he was temporarily in London had family in Cornwall and a bungalow property there.  The journey between Cornwall and London was approximately 7 hours by car.  Expert reports emphasised the likely difficulty the child would have if her contact to her father was reduced in frequency and dealing generally with significant changes in her life.  There was a difference between the experts.  The psychologist recommended against the move, the Psychiatrist did not give a clear recommendation but was overall more favourable to the possibility.

Held:

The Court of Appeal indicated that although it would not generally be appropriate to impose a condition on the holder of a residence order as they had held in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 (see above).   That case was not, however, to be read as creating a total bar on conditions unless there are doubts about the suitability of the primary carer or for some other reason it was necessary to keep control of the resident parent. ‘There will however be exceptional circumstances in which conditions will have, in order to protect the best interest of the child, to be imposed, albeit those conditions will interfere with the general right to choose where to live within the United Kingdom.  I did not intend in my judgment in Re E to exclude the possibility that an exceptional case might arise in which a parent against whom there is no complaint might nonetheless have to face some restriction of movement.'

The Court of Appeal also held that the same stringent tests did not apply to a parent seeking local relocation ie within the UK jurisdiction (see Re S).  In local relocation cases the court must be satisfied that the case was exceptional and that the absence of a condition would be incompatible with the welfare of the child. The present case was indeed truly exceptional because of the combination of the child's disability, her medical problems, her limited understanding, her foreshortened life expectancy and the impracticalities of travel.  It was a highly difficult balancing exercise on any view and following Re G it could not be said that the judge had got it wrong.

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RE M (A CHILD) (2003), CA, 28/3/03 (Thorpe, Sedley)

Father's appeal from the dismissal of his application to vary an order that restricted the removal of his daughter ('M') from the jurisdiction. The order was made in February 2000 and restricted both parents from removing M from the jurisdiction without written agreement of the other parent. However, both parents had vetoed any proposals by the other to take M out of the country since the order was imposed. The father accordingly applied to vary the order. The judge dismissed the application and condemned the father in costs on the basis that he held his application as being misconceived and a waste of time and money.

Held:
1. It was impossible to support the judge's conclusions, since it was clear that the father had never had an opportunity to give oral evidence and the hearing never went beyond an exchange between the judge and the father who appeared in person.

2. The judge had not appreciated that there was a need to decide the wider issue of whether the continuing restrictions on the father were necessary and whether the father had demonstrated that with the passage of time, and given his deep roots in London, continuing restrictions were required.

3. The judge had failed to treat the application by the father with the consideration and sensitivity that his status required. Accordingly, the father had established that he had not received a fair hearing.

Appeal allowed.

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RE M (A CHILD) (2003) CA (THORPE LJ, ARDEN LJ, BLACK J) 6/2/2003

As a result of the mother's addiction to drugs, the father applied for, and was granted, a residence order in relation to B. The father, who was of Israeli nationality and who had married and had two children with an Israeli woman ('N') made a subsequent application for leave to remove B permanently from the jurisdiction to live in Israel. In August 2001 the mother applied for an order prohibiting removal of B to Israel, which was supplemented by her application for a residence order. An order was made that the father could remove B, without any limit as to the time for completion of the plan, with a contact provision for the mother and grandmother to have two visits per year of a minimum of two weeks each, at the father's expense, and with the conditions that the father obtain a mirror order in Israel and that he put up £15,000 to ensure payment of return travel tickets for B in the event that his financial circumstances deteriorated. The mother appealed

Held:
1. The deputy judge had made a number of robust findings and reached robust conclusions that were plainly correct. No orders were sought for N's attendance at court, and in those circumstances the deputy judge had a wide discretion, and had not exceeded that discretion.

2. Liberty to remove B without a time limit on the exercise of the permission was undesirable, but the discretion would not be interfered with.

3. Contact should be granted in the form of one visit for three weeks in the summer holidays and one other visit of one week.

4. A sensible order was that £5000 be deposited in a joint account in London in the names of the father and grandmother.

5. The touchstone for imposing conditions as to security was the principle of "all practicable safeguards". There was a minimum below which the security figure should not go, namely a sum to allow the mother to travel to Israel to enforce the contact provisions.

Mother's appeal allowed in part. Father's appeal allowed.

RE C (CHILDREN) (2003), [2003] EWCA CIV 413, CA (Butler-Sloss, Thorpe, Arden)

Mother's appeal from the refusal of her application for permission to leave the jurisdiction with the children and relocate to Ireland. The father was enjoying good contact since the parents' separation.  The mother's application stated that, other than the two children, she had no family in England and felt unsupported and disenfranchised. She felt isolated and unhappy and sought to return to Ireland with the children in order to have support from her family. On appeal the mother argued that whilst the judge recorded her unhappiness and depression, he failed to focus adequately on the impact that refusal of her application would have had on her and in turn upon the children.

Held:
1. The judge's decision was to be criticised on the basis that he did not sufficiently recognise that the mother's primary case was that she was a disabled parent who was prevented from providing for her children what she was capable of providing, by virtue of her depression and isolation.

2. In the present case the potential impact on the mother of refusing permission, coupled with the fact that one of the children had a disability (Aspergers), fortified her case that she required all the support possible to enable her to deliver the high standard of parenting needed by that child.

3. The judge had failed to undertake the crucial assessment of the effect refusing the mother's application would have on her future psychological and emotional stability.

Appeal allowed.

RE C [2003] EWHC 596 Fam, [2003] 1 FLR 1066, Fam Div (Charles J)

The mother of two boys aged 11 & 8 applied to take them out of the jurisdiction to Singapore.  She was from Singapore and the father was English.  The parents had met in Singapore and mother had moved to England to marry the father.  Mother was born and brought up in Singapore and her parents and siblings still lived there.  The children had always lived in England and did not speak any Chinese. They were, however, acutely aware of the mother's unhappiness and desire to go to Singapore and somewhat resentful of their father for leaving the family home on the breakdown of the marriage and towards his girlfriend.  The father had accepted on separation that the boys, then aged 7 & 5 should live with their mother.  He had enjoyed extensive contact and they had a strong attachment to him.

Held:

Before an application for leave to remove would be granted it had to be shown that it was genuine (and not motivated by an inappropriate and selfish desire) and practical.  However, it did not follow that all applications which met this test would automatically be granted.  The court had to assess whether the granting of the application would best promote the welfare of the children taking into account the criteria in the welfare checklist.  If the court concluded that a refusal of the application would be likely to have a detrimental effect on the care that the primary carer would give, then that harm would usually outweigh the likelihood of harm flowing from other aspects of the proposed move because of the importance of promoting happiness and stability in the home.  Usually the harm that was likely to flow from a reduction in contact to the non-residential parent as a result of the move would not found a conclusion that the welfare of the child would be best promoted by refusing an application by the residential parent to take the child abroad.

After a careful analysis of the facts of this case the court concluded that the mother should be allowed to go to Singapore (with mother undertaking to put mirror orders in place as to contact).  Although the court invited her to consider seriously whether it was in fact the right thing to do, its overall conclusion was that unless she was so persuaded the balance of harm likely to flow from her unhappiness in being forced to remain was such that she should be allowed to leave.

RE B (CHILDREN) (REMOVAL FROM JURISDICTION): RE S (A CHILD) (REMOVAL FROM JURISDICTION) (2003) [2003] EWCA CIV 1149, [2003] 2 FLR 1043 (Thorpe, Judge, Sedley LJJ)

Appeals from two separate decisions refusing the appellant mothers' applications for leave to relocate to another country. In both cases the mothers had been refused the right to remove the child from the jurisdiction and both appeals centred around the mothers' recent and committed relationships with men based in another jurisdiction.   

Held:

The Court of Appeal quoted the dicta of Griffiths LJ in Chamberlain v De La Mare (set out above) with approval.

1. A mother's attachment and commitment to a man whose employment required him to live in another jurisdiction could be a decisive factor in the determination of a relocation application.

2. It was necessary to extend the judgment of Dame Butler-Sloss P in Payne v Payne (2001) EWCA Civ 166 so that where a mother cares, or proposes to care for a child within a new family, the impact of refusal of a relocation application on the new family and on the stepfather must be carefully evaluated.

3. In the case of B, the judge's approach was plainly erroneous. The judge had no basis for speculating that the relationship was transient.

4. In relation to the case of S, every authority stressed the importance of evaluating the impact of a refusal upon the mother's emotional and psychological well-being. The emotional and psychological reactions of S's mother to a refusal were not set out in her statements but she gave oral evidence in court that refusal would have a devastating impact and would prevent her parenting S to the best of her ability.

Appeals allowed.

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RE Y (LEAVE TO REMOVE FROM JURISDICTION) [2004] 2 FLR 330, Fam Div, Hedley J

Mother was from the US and came to Wales to study.  She married the father and had a child (aged 5 ½ at the hearing) but they later divorced.  The parents agreed to share care and the child's time was divided almost equally between them. The child was educated at a Welsh school and was bilingual.  Mother applied to take the child with her to the US on the grounds that she was isolated and wished to return to be near her family. 

Held:

The mother's application was refused.  The exceptional features of the case in that the child lived with each parent on an equal footing meant it fell outside the principles of Payne  and the court focussed on an examination of the welfare checklist.  The mother's plans were genuine and reasonable and she would be caused distress by refusal but the cost to the child of allowing her to move with him was too high in terms of major disruption and loss.

B V B (RESIDENCE: CONDITION LIMITING GEOGRAPHIC AREA) [2004] 2 FLR 979, Fam Div, Sally Bradley QC

Mother made an application for permission to remove a 6 year old to Australia.  This application was withdrawn 3 months later and then reissued.  Eventually mother also withdrew the second application but indicated that she was planning to move to Newcastle.  The court made a residence order in her favour but imposed a condition that she should not move out of the area bounded by the A4, M25 and A3.  The court was concerned about the practical difficulties of contact (which would depend on mother ensuring the child got on an aeroplane, the mother's hostility to contact, the misleading evidence the mother had given to the court and the inappropriateness of changing the child's school.  The mother had no connections to Newcastle save for a casual friendship made on holiday, no real knowledge of the area (she had made one visit) and a business based near to her present home with no clear plan for establishing a similar business in Newcastle.   Once she became aware that the court was against her plan she gave evidence that she would move to Devon or Cornwall where she had no links whatsoever.  The court was left with the impression that the mother's main objective was to find a way to reduce, if not delete entirely, the amount of contact.  The court considered this to be a highly exceptional case.

RE A (A CHILD) 2004,[2004] EWCA Civ 1587, Re A (Temporary Removal from the Jurisdiction) [2005] 1 FLR 639, Times November 10 2004, CA, Thorpe, Wall LJJ, Black J

A mother wished to take her child to South Africa for two years.  Father had parental responsibility and the child spent two nights a week with him.  Mother was a scientist employed by a university as a research assistant.  The temporary relocation was required by her contract: if she did not go she would be dismissed, if she did go she would be likely to achieve a PhD.  The trial judge declined her application for permission to remove and whilst acknowledging that the case involved an application for temporary not permanent removal, nonetheless applied the principles of Payne  to the case.

Held:

The principles in Payne were not automatically to be applied in considering an application for temporary removal.  In this particular case the judge had put too much weight on the impact on contact by approaching it as if the removal would be permanent.  The impact of refusal on the mother's career prospects was significant.

RE S (CHILDREN) 10/11/04 LAWTEL, [2005] 1 FCR 471, CA, Thorpe, Wall LJJ, Black J

The mother sought to relocate to Spain with the children.  She was the main carer.  The marriage had been relatively short and the mother had moved to live to an area of the country she was unconnected with except for the marriage.  Mother's mother and brother lived in Spain and she wished to join them.  The father objected to the move arguing that it would have a negative impact on his contact rights for financial reasons.  The judge found that the mother's motives for wanting to move were genuine and plausible and rejected the father's arguments on costs as unsupported by evidence.  However, he dismissed mother's application on the basis that mother was not bound to go but wished to do so as a life style choice.

Held:

Mother's wish to move to join her family was natural and understandable and the Payne principles should be applied.  Even were the mother's wish purely motivated by a wish to change life styles it did not mean that the Payne principles should not be applied.    Given the surrounding facts found by the trial judge, the mother's application should have been allowed.  The court also commented that cases involving applications for the removal of children from the jurisdiction should not usually be listed before Recorders or part-time judges but reserved if possible to the designated Circuit Judge.

R V R [2005] 1 FLR 687, Fam Div, Baron J

The mother of two children aged 2 & 3 applied for permission to take them to live with her in France.  Mother had been born and raised in England but was half French and spoke fluent French.  She had some family living in France though her immediate family lived in England.  Mother argued that her application was analogous to applying to return to her country of birth.  The court rejected this and refused the mother's application.  Mother had never lived in France, her relationship with her French family was not particularly close, the children did not speak French.  Her plans were not thorough or comprehensive.  Because of her emotional profile she was just as likely to become disillusioned with life in France.  She was emotionally unstable and needed to undergo psychotherapy.  If the children were moved to France they would lose the valuable advantage of having their Father close at hand and the ability they had in England to have mid-week contact.  Commuting for contact at weekends would be very tiring.  They would lose out on the relationship they had with both sets of grandparents.

RE G (CHILDREN) 2005, [2005] EWCA Civ 170, [2005] 2 FLR 166, Thorpe, Smith LJJ, Times 28 February 2005, CA

An Argentinian mother applied to take her children to Argentina permanently.  The father had previously sought and obtained a contact order and a prohibited steps order preventing the mother from removing the children (in 2002).  Following a visit in 2004 to Argentina by mother and the children he applied again for a PSO.  The court at first instance refused the mother's application, the judge holding that mother would be disappointed but not so distressed as to cause emotional harm or psychiatric damage to her.

Held:

The judge had erred in assessing the emotional impact on the mother who had not given any evidence as to the impact on her of the application being refused.  The judge was elevating an expression of hope as to the mother's fortitude into evidence-based reasoning.  The Court of Appeal granted mother's application subject to consequential issues being agreed between the parties or in default of agreement being decided by the court (the CA did not order a retrial since neither party was publicly funded).

RE B (LEAVE TO REMOVE: IMPACTOF REFUSAL) [2005] 2 FLR 239, CA, Thorpe, May & Scott Baker LJJ

Mother applied for permission to move the children of 8 & 6 ½  to Australia where she had immediate family (mother and brother) and had spent two years living there earlier.  Father was having gradually increasing contact following separation. The mother's case was that the move was of great emotional significance to her and she claimed she would not cope if permission was refused.  The Judge nonetheless refused her application, being concerned that she would not offer contact over and above that which was required by court order and that she could not deal with the hypothetical question about what she would do if the children failed to settle.

Held:

The appeal was allowed and the case remitted for rehearing.  The Judge had failed to assess adequately the impact on the mother and her husband of the refusal and to balance that against the inevitable loss of the regular and frequent contact with the children's father.  It was important to give great weight to the emotional and psychological well-being of the carer.  It was not sufficient merely to take note of it.  A failure to offer contact over and above a court order was not as a general rule a relevant consideration nor was mother's difficulty in dealing with the hypothetical situation of the children not settling. There was no difference in principle between a ‘lifestyle' case (one in which the reason for relocation was a desire to improve general living conditions) and other types of case, such as where a foreign national wished to return to their country of origin.  The same principles should be applied to the facts of each case:  the judge must assess the applicant's reasons for wanting to move and bring it into the balance.  The balance between harm to the primary carer and harm to the relationship with the father was a fine one but needed to be re-evaluated at a rehearing.

RE B (CHILDREN) 2005, [2005] EWCA Civ 643, LTL 21/4/05, CA, Thorpe, Scott Baker, Wall LJJ

The trial judge granted an application by the father for permission to remove the children to Dubai.  After their parents' separation, the children had lived with their mother in England.  Both parents had links with Dubai, the mother had strong links with Holland and wished to take the children to live there.  The judge found that both parents were capable of meeting the children's needs.  Both parents were in new relationships, mother's relationship if not successful, would leave her without a home in Holland.  The judge declined to apply Payne to the case.

Held:

The judge was entitled to disregard Payne in this case.  Payne concerned a mother who wanted to relocate to safeguard her own emotional and psychological well-being.  Effectively in this case the court was being asked to decide which jurisdiction would best advance the welfare of the children.  It was a finely balanced case and the judge had recorded the competing considerations: it was not possible to say that he was wrong.

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H (MOTHER) V F (FATHER) (REFUSAL OF LEAVE TO REMOVE A CHILD FROM THE JURISDICTION) 2005, [2005] EWHC 2705 Fam, [2006] 1 FLR 776, Fam Div, Jeremy Richardson QC

Mother applied to take her 9 year old son to Jamaica.  Both parents had parental responsibility.  The child lived with mother and had regular contact to father.  Mother was a qualified social worker but did not work because she looked after the child full-time.  She was on benefits.  She wanted to return to Jamaica with her father to run a bed & breakfast business in a property he owned.

Held:

Although the mother was genuine in her proposals, they were unrealistic and speculative in terms of income and benefit to her family.  The business was only likely to achieve limited income at best. By contrast mother was perfectly capable of working in the UK where she would be likely to earn more.  Mother was not seeking to return to the heart of her family following the termination of a foreign relationship: she had lived in the UK a very long time and said she would remain in the UK if her application to take the child was refused.  The court was concerned that mother was capable of acting irrationally and might make contact difficult in future.  The father had an important role in the child's life and this bond would be severed.  Overall, applying Payne, the application was refused.

RE W (A CHILD) 2005, [2005] EWCA Civ 1614, LTL 17/11/05, [2006] 1 FCR 346, CA, Thorpe, Rix, Wilson LJJ

Father, as primary carer, was granted permission to take the child to Australia.  He and the mother had separated because of a  deterioration in mother's mental health and since 2003 the mother had only had indirect contact. 

Held:

The judge was correct to grant the application: the father had wanted to emigrate for several years and the reality was that the relationship with the mother was only very limited.

RE D 21.11.05, CA, SEDLEY, WALL LJJ, CASETRACK

Mother appealed against an order made granting permission to father to take two children aged nearly 9 & 8 to Australia,  The mother had a third child by a different father who was aged 3 in respect of whom the judge had made a care order approving an adoption care plan By the time the appeal was heard the children had already left the UK. Findings of fact in relation to the threshold criteria a year previously.  The expert and professional evidence unanimously recommended that the elder children should live with their father, he having managed to re-establish a relationship with them following a long period in which mother had frustrated their relationship.  Mother apparently could not contemplate contact with the children if they were to go to Australia.  The Court of Appeal could see no argument for disturbing the judge's decision.  The appeal was also disallowed in relation to the youngest child.  Mother had taken the bizarre stance before the judge that if she could not have the eldest children she abandoned any attempt to argue for a reunification with the youngest.  However, she still had the opportunity to revisit this as the case continued with a hearing listed to deal with a freeing application.

AM V AM SUB NOM RE A (LEAVE TO REMOVE: CULTURAL AND RELIGIOUS CONSIDERATIONS (2006), [2006] EWHC 421, [2006] 2 FLR 572, Fam Div, McFarlane J

Mother applied for permission to take her 9 year old son to Holland.  Mother and father were previously married and Iraqi nationals and Shia Muslims.  Mother's new husband lived in Holland and cared for his parents who were unwell.  Mother's brothers also lived there and she had no family in the UK.  The father had an important role in his own group of families in Iraq and was likely to succeed his own father as head, and his son in turn would succeed him.  There was much hostility between the parents and problems over contact (mother had at one point deceived the father about the child's whereabouts and mislead the court when giving an undertaking).  The child said he wished to live with mother in Holland and that the father was negative about the mother during contact.  The father argued that the child should be with him, amongst other reasons, for the purpose of religious upbringing and to secure his future position in the family and suggested that the son's expressed wishes were not genuine.

Held:

Mother's application should be granted.  Religious upbringing could be secured during extensive periods of contact during the year even if not frequent. According to expert evidence, the child's future position in the family had already been lost as he had not been in the care of his father for some time.  Mother's desire to go abroad was genuinely motivated and well reasoned.  She supported contact continuing notwithstanding the history.  The negative remarks to the child about her, if they continued, would be likely to cause an emotional rift with the father, such that it might be in his interests for contact to be less frequent.  A refusal of the application would only inflame the hostility between the parents.

CC v PC [2006] EWHC 1794 Fam Div (Hedley J) 4/7/2006

The applicant mother (M), who shared care of her son  of  15 and two daughters aged 10 & 11 with the respondent father (F), applied for permission to remove the children from the UK in order to move to the United States to marry her partner. F cross-applied for residence. M and F had been living together as husband and wife with the children in the United Kingdom. The relationship between F and M became acrimonious and M moved out of the FMH in 2003. A mediated agreement between M and F was reached that effectively split the children's time 50:50 between them. F continued to live in the matrimonial home and M rented property in the same area so that shared care of the children could be exercised without interference with school arrangements. F was in a new relationship and he and his partner had another child.  M announced that she planned to move to the US to marry her American partner and filed the application to take the children with her. F submitted that the shared care arrangement should remain as it was, and that if M elected to opt out he was in a position to care for the children. He argued that the children settled in their social and academic lives and that they continued to be in favour of the shared care arrangement. M submitted that she had always been the main carer and that the son in particular was at that present time particularly close to her and was experiencing difficulties in his relationship with F. M also argued that the daughters would need her as they went through adolescence into adulthood and that her proposals to move were entirely reasonable.

HELD: M's application was successful (although the attitude of both parents to each other and the dispute did neither of them any credit). The arrangements in place for shared care were no longer sufficient in any event. The children's emotional needs were paramount and it was clear from the evidence that the acrimony between M and F was having a negative impact on them. M and F both had reasonable cases and were both in a position to address almost all the children's needs. Further, the children had a real attachment to both their parents and their parents' partners. A joint residence order, albeit spanning more than one jurisdiction was appropriate (their being no argument or procedural bar against it), and it ensured that the children spent significant amounts of time in the UK and the US, F (Children) (Shared Residence Order), Re (2003) EWCA Civ 592, (2003) 2 FLR 397 applied. M was better able to meet the emotional needs of the children and had a far clearer understanding of those needs than F. She was more aware of the impact of the parental dispute on the children and she was less likely to put emotional pressure on them and more likely to promote contact.

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RE N (CHILDREN) [2006] EWCA Civ 872, CA (Civ Div) (Thorpe LJ, Arden LJ, Wilson LJ) 14/6/2006

The appellant mother (M) appealed against a residence order and a trial relocation order made in favour of the respondent father (F). F, while in the process of emigrating to Canada, had applied for a residence order and a relocation order in relation to his two children (C and S), aged 12 and 9 respectively. A residence order was made in favour of M, and F was granted contact, which continued after his move to Canada. On his return there was a turbulent relationship between C and M and C ran away from school. F returned to England and resumed staying contact. After such contact C refused to return to M. F issued an application for a residence order in relation to both C and S and for permission to relocate to Canada. An interim residence order was made in favour of F in relation to C, and F subsequently conceded that S should stay with M and that he would stay in the UK if he was not allowed to take C to Canada (though this concession was withdrawn before the Court of Appeal). At the full hearing the judge granted a residence order in favour of F and granted a trial relocation order to be reviewed in a years' time. The judge held that F manipulated C in order that C should support F, and that he had put C in an impossible situation. She further held that C and S would be emotionally harmed if they were living in different parts of the world, but that despite anxieties it was practicably impossible to reverse the structure of the interim order.

HELD: The crucial question for the judge was not the residence order, but the very difficult question of relocation. When considering the residence order the judge carried out a full balancing exercise and clearly established her rationalisation for the order, but when considering the relocation application the judge carried out a very sparse balancing exercise. Whilst the decision might have had pragmatic justification, the decision was not supported by reasons and findings, and it would be an injustice to M to allow the flaws in the judge's decision to stand. She had not taken sufficient account of the adverse findings she made against F, nor of the wishes & needs of C or the need for each child to maintain a relationship with the other.  The relocation order would be set aside and the matter remitted for retrial. (Per curiam: the court did have the power to make the relocation order on a trial basis.  It would have been preferable had the Judge ensured the children were separately represented).

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RE A-M 21.6.06, CA WILSON LJ, CASETRACK

Father applied for permission to appeal against an order in the reported case of AM V AM granting mother permission to take the parties' 9 year old son to live with her in Holland and making orders about his contact. Both parents were Iraqi nationals.  Mother was in a permanent relationship with a man who lived in Holland and with whom she had a child and she had a substantial number of relatives in Holland and none in England.  Father's arguments were that it was not in the child's interests to be educated in Holland where he would have first to learn Dutch, that mother's motivation was to undermine his relationship with the child, that the judge had ignored the cultural aspect of the child's needs as a Muslim boy for intensive religious and cultural instruction by his father and that the child would be excluded from his expected future role as mantle head of the family if he did not live with the father.  The evidence of the Cafcass Officer was that the child wished to go to live with mother and her new partner and was distressed by the father's open hostility about the mother.  The Court of Appeal could find no basis on which to disturb the judgment and permission to appeal was refused.

G (A Child) [2006] EWCA Civ 1507 (Ward LJ, Richards LJ)

Appeal by M against order directing child to attend a particular school. Appeal allowed.

The mother and father had both been living in Australia and an order was made in Australia that the child (aged 10) should live with the mother and have contact with father at specified times and that he should attend a particular school in Bedfordshire  unless the parents agreed, or the court ordered, otherwise. The mother left for the UK and when the father also arrived it was found that the contact arrangements were unworkable. M had been residing with her brother which meant the named school was 40 miles away. M wished to be permitted to live in Dorset with or near her parents and the boy attend a school in Dorset. M submitted F had some ability to change his job and move closer to where the boy had his home. F was of the opinion M should relocate herself close to the school. By the time of the final hearing the mother had in fact relocated to Dorset. The father's case was that the mother was determined to ensure that his contact was made as difficult as possible and, if possible, reduced altogether. The judge ordered residence in favour of M, but for the child to attend the school (as specified in the Australian order) some 40 miles away from where she resided with her brother.

Held: Appeal allowed. The court's first task is to decide with whom a child live and make a residence order accordingly, and that ordinarily a residence order should not be fettered with a condition that the parent who has that residence order be confined to a particular locality; the authority for that proposition, and there are many others to like effect, is Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 (see the judgment of Butler-Sloss LJ, particularly at page 642). To pick a school and work everything around the school is to put the cart before the horse. It would be wrong to require the mother to relocate closer to the school. No practical account was taken of the fact that she was in financial difficulties and on income support. She did not have her own car. Whilst the difficulties of moving are not to be underestimated the fact remained that, on F's own account, there were many vacancies for teachers of PE and it was not impossible for him to relocate to Dorset. It was completely unrealistic to expect this boy to travel from Dorset to Bedfordshire to attend school, and it is on the authorities not permissible to make an order the effect of which is to impose a condition on M's residence order that she reside within the vicinity of the school. Particularly in the light of the changed circumstances, the judge was wrong not to take account of the difficulties in the geography between the mother's home and school.

The order that he resided with the mother was to prevail and she was to ensure his education resumed imminently.  The matter was referred back to the High Court for a determination on contact.

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E v E [2006] EWCA Civ 843 Court of Appeal: Wall, Maurice Kay and Wilson LJJ (27 June 2006)

Judge's residence arrangements for children and ancillary relief order set aside and re-hearing by Family Division judge directed.

The parties had 4 children aged between 10 and 3. After the breakdown of the marriage both parties and the children continued to live in the former matrimonial home, which was a substantial six bedroomed house in Bognor Regis. It was originally agreed that the children should remain in the FMH because of the familiarity with the local area, schooling and the advantage of changing as little as possible during difficult times and one parent would leave the FMH. M & F were also agreed that, whichever parent remained in the former matrimonial home as the "primary" carer, the other should enjoy what the judge described as "significant regular contact" with all four children. A shared residence order was made in July 2004 and in October 2004 a consent order was made which determined the amount of time that the children spent with each parent. The children lived in the FMH with M. Subsequently in March 2005 M wanted to vary the shared residence order and replace it either with a sole residence order in her favour, or in the alternative an alteration in the shared residence arrangements; she also sought an order in the proceedings for ancillary relief between the parties that the former matrimonial home should be (a) transferred into her sole name and (b) sold. She wished to relocate to Bexhill. She had formed a relationship with Mr. M, and was pregnant by him. Bexhill was where she came from and was her family's home town. The judge concluded that the shared residence order should remain, but as a part of the settlement order sale of the FMH.

Held: allowing both parties' appeals, that the judge had accepted the mother's proposed move without any proper analysis of its consequences for the children, and the orders made for the children's residence were unsustainable;  The court was guided by principles expressed in Payne v Payne [2001] Fam 473: where a mother with a residence order wished to relocate with her children, the judge's duty was to subject the mother's relocation proposals to rigorous scrutiny, and to balance their benefits for the children, and the effect on the mother of refusing her application, against the effect on the children of the disruption of their relationship with their father. The court found that the judge had abnegated his responsibility for deciding what was in the children's best interests, and failed to make clear the nature and strength of each child's relationship with each parent. In his judgment the judge mentioned a preferred course in terms of schooling and residence but ultimately left it to M to decide where to live, thereby entrusting his responsibility to decided what is in the best interests of the children to M. The fact M did not need the formal leave of the court to move to Bexhill was beside the point. If it was doubtful as to whether it was in the interests of the children to move to Bexhill the court would need to consider whether it would be preferable to attach a condition to any continued residence order, shared or otherwise, in favour of M that they should continue to reside with her in Bognor or indeed to invest their sole residence in the father.

The judge should have asked the following Q's (1) Was it in the interests of the children for the shared residence order to continue? (2) Irrespective of the label put on the residence arrangements for the children, was it in their interests to move with M to Bexhill, if the consequence of that move was a substantial disruption of their relationship with F? (3) If they were not to move to Bexhill with M, what arrangements should be made for their residence? (4) If they did not move to Bexhill, should they live with F, and if so where? (5) If it was in the interests of the children for M to remain their primary carer, should she be required to remain in Bognor and in the matrimonial home as a pre-condition of her retention of that role?

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RE B (LEAVE TO REMOVE) [2007] 1 FLR 333, [2006] EWHC 1783 Fam, LTL 26/7/06 Fam Div, Sumner J

The mother, a lesbian, was in a relationship with the father's sister and agreed with him that he would donate sperm to enable her to have a child.  Father was a homosexual.  There was no clear agreement between them about the ongoing role the father would play in the child's life which gave rise to lengthy and acrimonious proceedings from 2001 involving some 20 court hearings and resulting in the termination of each parent's prior relationship.  At one point the mother went to the New Mexico, US (where her mother and brother lived in Miami and Washington respectively) with the child, on one occasion in defiance of a court order, and she made allegations of sexual abuse by the father.  Contact had taken place but it was fraught with difficulties and accusations on each side.  Mother said she wished to go to the US because of her mother's declining health and the better prospects of employment and a specific job offer for well-paid work.  She had located a school for the child and was offering staying contact in the UK and in the US if father were to travel.  The contact offered in the US was greater than that which was happening in the UK at the time of the hearing.

Held:

The court held that either refusing or allowing mother's application would cause problems for the child but the better course was to allow the mother's application.  The court accepted that the mother had moved on from her earlier hostility, her reasons for going were genuine and her practical plans were well thought through.  Refusing her application would be devastating for her and would adversely affect her ability to care for the child.  Continuing litigation in the UK would be detrimental to the child and this was decisive.  Contact was more likely to flourish if the application were allowed.  The court required the making of mirror orders and the giving of undertakings and the retention in the UK of some of the mother's funds for a period of time to secure contact.

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RE N (LEAVE TO REMOVE: HOLIDAY) [2006] 2 FLR 1124, CA, Thorpe & Smith LJJ

Mother applied for permission to remove her son to Turkey on a permanent basis which was refused.  She made a subsidiary application for permission to send the child to Slovakia for a holiday with the maternal grandmother.  She had taken the child there before and he had enjoyed the visit.  She said she could not go with him because of work difficulties and proposed that he should travel unaccompanied.  He did not speak the local language and would have to change planes.  He would not be able to communicate easily with his Slovakian family.  The Judge refused permission, being concerned at the application coming on the back of the application for permanent removal and in light of the father's concerns about the mother's trustworthiness.

Held:

The Judge had been wrong to place so much weight on the timing of the application which had simply been an expediency to save costs.  He was also wrong to focus so much on the concerns of the father and not enough on the value to the child of the holiday with family to a place which was a signatory to the Hague Convention.  However, the order which would be substituted for that of the Judge would give permission for the child to go abroad with effect from the following summer when the child would be just over 11.  The court made reference to the possible argument, which the mother had not in fact relied on, to the effect that permission might not have been needed to sanction arrangements made by the primary carer for a child to take a holiday unaccompanied.

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RE H 9.11.06 CA WILSON LJ, CASETRACK

Father applied for permission to appeal against an order allowing a mother to take the parties' 8 year old son to New Zealand.    Mother had remarried and had a child with her new husband who was from New Zealand and whom mother had met while he was working temporarily in London.  The mother herself was American and had no real connection in the UK apart from in respect of father.  In granting the order the court had also ordered a pattern of contact involving 11 weeks a year which the court found that father who was self-employed was likely to be able to sustain both in terms of time and money.  By the time of the permission hearing mother and child had already left for New Zealand, father not having applied for a stay.  The evidence before the judge indicated that the move was well thought-through, intended to be made for proper reasons and that the mother and her husband would have the benefit of his close family network.  The Cafcass Officer supported the move.  The Child & Adolescent Psychiatrist was more equivocal and certainly underlined the detriment to the child arising from the disruption to contact though he also said that the relationship would be likely to survive that disruption and pointed out that if permission were refused the child himself who was also somewhat equivocal might blame himself for the consequential strain and distress of the mother.  The father raised concerns that it would be detrimental to the child to interrupt his education and uproot him from his friends but his principal concern was as to the disruption of their relationship.  The Court of Appeal could find no reason to criticise the judge and refused father permission to appeal.

RE H 30.11.06 CA THORPE, HOOPER, MOSES LJJ, CASETRACK

Mother applied for permission to appeal against the refusal by the judge of her application for permission to take the parties' 8 year old son to live in New Zealand.  Mother had a new partner and they wished to move to New Zealand.  The judge was satisfied that her plans were thoroughly researched.   The father and his family had a particularly close relationship with his son and they spoke on the telephone daily and enjoyed regular contact.  There was no issue about residence itself in that mother indicated that if she was refused permission she would stay in the UK and care for the child rather than relinquish him to the father.   Father was employed and only entitled to 29 days holiday a year plus bank holidays.  The Cafcass Officer's evidence illustrated the child's vivid anxiety about the prospect of permanent removal and consequent reduction in his engagement in the family life of his father and father's family.  The judge found that the mother's proposals did not have the ‘ordinary characteristic' of family life that had been established post-separation  It was argued for the mother that the judge's reasoning would suggest that any mother whose application could be classified as ‘pure emigration' would fail.  The Court of  Appeal rejected this argument, whilst noting that: 'In an emigration case, the burden on the applicant is, inevitably augmented, since she does not have a powerful emotional and psychological attachment to the country of destination.  But that is not to say that there will not be pure emigration cases where the applicant will succeed.  There may be cases where the motivation of the father is demonstrated to be malign.  There may be cases where the attachment of the child to the father is weak.  There may be cases where the pre-existing contact regime has been sporadic or unsatisfactory.  There may be cases in which a mature child is equally as ardent as the primary carer in seeking to emigrate.  All these cases must, inevitably, turn on their own facts.'  Permission to appeal was refused.

JC V CS 16.11.06, [2006] EWHC 2891 (Fam), LTL, Fam Div, Sumner J

The mother applied to take her child of 3 to Australia where she was born.  She had lived for 6 years in the UK where she met the father and they had a child.  The father at first agreed to the planned move, then opposed it, but ultimately limited his opposition to saying that the mother should not go until the child had finished a year at pre-school, over a year after the hearing.  The mother had completed a year of a sports science degree in the UK but put her studies on hold in order to care for the child and deal with the court case.  The delay in advancing her planned moved to Australia would delay the completion of her degree course and subsequent hope of employment further.  There was clear evidence including that of the Cafcass Officer of the damaging impact on her and therefore on the child if her plans continued to be frustrated.  She was flat and depressed, if not clinically.  Her life was on hold and she was keen to return to Brisbane where she had long-standing friends and a sister and uncle from whom she could expect considerable practical support.  By the time of the hearing she had demonstrated that her plans were well thought through.  The father's argument for delaying her departure was that it would ensure a deeper bond between him and his family and the child.  He was also concerned that the mother would stop contact in Australia from working.  Whilst these fears were genuinely held they were not well-founded.  The court accepted that the mother was genuine in her commitment to ensure that contact would take place and her application was granted with immediate effect.

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RE J [2006] EWCA Civ 1897, 19.12.06, CA, LTL (UNREPORTED ELSEWHERE), Thorpe, Carnwath, Wall LJJ

The facts of this case were complex and unusual.  There were five children of the family, two of whom were over 18, one living with the mother and one with the father.  There was a deep rift between the two households.  The youngest child lived with mother and had contact with her father.  The other two children lived with the father and refused to have contact with mother.  The father wished to move with the children to Bulgaria.  At the hearing he conceded that the youngest child should remain with her mother.  His case was that he was in dire financial straits, effectively bankrupt and needed to move to Bulgaria where he had employment.  In addition, his parents, who had been supporting his family financially in the UK were no longer willing to do so and wished themselves to move to Bulgaria where they had bought a house big enough for father and the children to live together with them.  Mother was concerned about the involvement in the father's life of a woman with whom she believed he was having a relationship and who she felt had an unhealthy influence on the family.  The Guardian had requested that the court adjourn the case in order that she could assess matters further: this was supported by the expert.  In fact, by the time the case was heard by the Court of Appeal, despite the speed with which this happened, father and the children had moved and one of the children had expressed great relief that the case was over and that he had been able to go.

Held:

The Court of Appeal refused the mother's appeal.  The Judge had opted for the only possible outcome in allowing the relocation application in light of the realities of father's financial situation and the disconnection between the children and their mother. The discipline in Payne hardly applied, but in so far as the principles from that case were relevant they supported the Judge's conclusions.  The Judge had given adequate reasons for his departure from the recommendations of the Guardian and the expert but by the time of the appeal hearing it was clear that the children had settled and welcomed the move.

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RE G (CHILDREN) [2006] UKHL 43, 26.7.06, 2 FLR 629

This case concerned two children aged 7 & 5 who had been born to a lesbian couple as a result of artificial insemination.  CG was the biological mother.  The other parent, CW also had a son from a previous relationship, also conceived by donor insemination.  The relationship ended in 2002 and by the time of the hearing both parties were in new relationships.  CW applied for contact and shared residence post-separation.  A good pattern of staying contact was established.  At the hearing of CW's application, CG indicated to the court that she wished to move with the child to Cornwall.  The Cafcass Officer recommended against this and was concerned, as was the court, that the move was in part designed to undermine contact.  The Judge rejected the idea of shared residence because of the hostility between the parties but made orders for extensive contact to CW and imposed a condition on CG's residence order that she continue to live in Leicester.  CW appealed to the Court of Appeal (see Re G (Residence: Same-Sex Partner) [2005] 2 FLR 957) which substituted a shared residence order for the sole residence order.  CG then sought agreement to the move to Cornwall through solicitors but it was not forthcoming.  Despite this and in clear breach of the order, she and her partner took the child to Cornwall without warning and applications under the FLA 1986 had to be obtained to trace the child's whereabouts.  CG applied for the residence restriction to be lifted; CW asked the court to reverse the time division between the households under the shared residence order.  Contact arrangements were restored and adhered to on an interim basis.  A different Cafcass Officer who had forged a reasonably good relationship with both parties gave evidence.  He recommended that notwithstanding CG's behaviour, the child should stay with her and a family assistance order should be made.  He was concerned by CG's live evidence but still recommended on balance that the child should stay with the biological mother who had always been the main carer.  The High Court Judge disagreed with this recommendation, particularly because she did not think that CG would maintain contact at a level which would promote the essential close relationship to CW.  The Court of Appeal upheld this decision.  CG's argument to the House of Lords was that insufficient account had been taken of the role of CG as both biological and psychological parent. 

Held:

Baroness Hale conducted an analysis on biological parents both pre and post-Children Act 1989 in the context of the changing nature of family life. The HL concluded that the lower courts had allowed themselves to be distracted by the unusual factual context of the case and had placed insufficient emphasis on the importance of the role of biological and psychological parent which were both fulfilled by CG (though this did not mean that biological parenting raised a presumption in favour of the biological parent).  Secondly, the fact was that CG, despite her previously reprehensible behaviour, was maintaining the important relationship with CW through contact and therefore there was not a good enough reason to change the child's living arrangements.  

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RE H 2007, 8.2.07, LTL (UNREPORTED ELSEWHERE), CA, Thorpe, Thomas, Wall LJJ

Mother and father who had met through the internet had a daughter of 6.  They separated and mother began a relationship with another man she met through the internet and they married.  The mother was from North Carolina and wished to relocate there.  It was not clear at the time of the hearing or the appeal whether he would be given permission to live in the US.  Mother's mother and twin sister lived in North Carolina.  The mother's home in the UK was in Yorkshire and father's in Bristol.  Father travelled to have contact every weekend.  Father had another child with his new partner and there were step-children.  The paternal grandparents also had a close relationship with the child.  The Judge refused permission to the mother and categorised the case as a ‘lifestyle choice' case. 

Held:

The Court of Appeal upheld the Judge's decision and disallowed the mother's appeal.  They agreed that the Judge was wrong to categorise the case as a ‘lifestyle choice' case but his underlying reasoning was sound.  He was not convinced that the mother would settle in the US on the evidence as to her personality and he was entitled to reach that conclusion.  The mother would cope with a refusal and was having to contemplate in any event that her plans might be frustrated if her husband were refused entry.  The court flagged up that the position might change in future when the child was old enough to express her own views.

RE MK (RELOCATION OUTSIDE JURISDICTION) [2007] 1 FLR 432, CA Thorpe, Arden, Wilson LJJ

The mother was Brazilian and met the father while spending time in the UK.  The child was born in 2004.  When the relationship ended the mother sought father's agreement to her plan to return to Brazil with the child but he would not agree.  Both parents made applications to the High Court where the Judge refused the mother's application for permission to leave.  The Judge was not satisfied as to the practicability of the mother's proposals and found her evidence as to her ability to practise law in Brazil to be misleading.  The court also accepted the apparent suggestion in the evidence of the Cafcass Officer that the mother would not be devastated by a refusal (the mother's own evidence with limited medical support was that she would be).  A shared residence order was made, though the child would be with the mother for the majority of time.

Held:

Mother's appeal allowed.  On the facts the Judge should not have made findings against the mother on her ability to work in Brazil and should have given her an opportunity to deal with her concerns and was wrong to find any support for her view that mother would not be adversely impacted by refusal from the evidence of Cafcass.  There was no foundation for her concerns about the mother's proposed arrangements.  The court had failed to give sufficient weight to the fact that ongoing contact could be ensured by means of mirror orders in Brazil. The Court of Appeal felt able to substitute its own decision for that of the Judge and allowed the mother's application in principle but remitted the case for further consideration of the conditions which should be imposed to secure contact.

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RE G (CHILDREN) [2007] EWCA Civ 1497 CA , (Civ Div) (Thorpe LJ, Arden LJ, Wall LJ) 11/12/2007

The applicant father (F) (who was French) applied for permission to appeal against a decision allowing the respondent mother (M) (who was German) to remove the couple's two children (aged 8 & 5) from the jurisdiction. M and F had been living together with the children in London. Following the breakdown of their marriage M applied for leave to relocate to Germany with the children. Under agreed contact arrangements the children had been accustomed to spending significant periods of time with each parent so, as well as granting M's application to remove the children to Germany, the judge made a joint residence order and decided on an appropriate level of contact. F submitted that the decision in Payne v Payne (2001) EWCA Civ 166, (2001) Fam 473 had been misunderstood and misapplied by the courts, insomuch as judges appeared to deduce from the principles applicable to relocation cases enunciated therein the prioritisation of the impact of the refusal on the primary carer above all other factors, and the disregard of modern principles of co-parenting & joint residence.

HELD: A decision of the Court of Appeal stood and required no correction so long as it remained good. Despite the difficulties presented by relocation cases, the principles enunciated in Payne were well understood at first instance and had been of evident assistance to trial judges in the difficult task that they had to perform.  It should be noted that Payne was decided after D v D in which the President & Hale LJ had emphasised that joint residence orders should not be considered exceptional.

Application refused

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In the Matter of F & H (Children) [2007] EWCA Civ 692, CA (Civ Div) (Thorpe LJ, Arden LJ, Hedley J) 7/6/2007

The appellant (F) appealed against a judge's decision to grant an application by the respondent mother (M) to relocate with their daughter (J) (5) to the United States. M, who was a US citizen, and F, who was British, had had a relatively short marriage. Their post-separation relationship had been bad, and after a hearing about contact the judge had made findings of domestic violence against F. After spending a total of six years in the United Kingdom, M sought to return to the US together with J and an elder child (8) from a previous relationship, who was also a US citizen. At the time of her application M had not identified the exact school that the children would attend, nor had she identified a particular employer who was ready to offer her a job. However, she was not proposing to move for some months and the father of the elder child supported the application, as did the CAFCASS officer, who described M's proposals as reasonable. The judge placed emphasis on the fact that M was not seeking to move immediately, and found that to refuse the application would have a serious impact on her well-being. F submitted that the judge had (1) been plainly wrong to accept the adequacy of the practical proposals put forward by M; (2) erred in finding that there would be a serious impact on her well-being were the application to be refused.

HELD: (1) The bar as to practicalities was set at a variety of heights depending on the circumstances of the case. The instant case was a commonplace one of cross-border family creation where the primary carer was returning to a completely familiar environment, and in those circumstances the bar was set considerably lower than in the case of an applicant who, in pursuit of some dream or ambition, was proposing to take the children to an unknown and untried environment. M had only been in the UK for six years, and the bar was set particularly low where the primary carer was returning to a completely familiar home life after such a brief absence. The judge had dealt sensibly with the matter; she had the CAFCASS officer's appraisal that M's proposals were entirely reasonable, and she had come to the view that M had time to, and would, ensure that the children would have a proper home and schooling. (2) F had identified no misdirection by the judge in relation to her finding that M's well-being would be affected if she were not permitted to relocate. In making that finding the judge, with extensive knowledge of the family gained from prior contested proceedings, had been exercising her broad discretion. Her conclusion was open to neither criticism nor challenge.

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In the Matter of M (Children) LJ Wilson CA, Neutral Citation Number: [2007] EWCA Civ 1292 Wilson LJ

F's application for permission to appeal (made very late) was refused, because there was no doubt that, in relation to M's application for leave to remove the children to France, the judge had directed himself at length in accordance with the leading case of Payne v Payne [2001] Fam 473.

The judge had found, both M and her new partner had significant capital; and that their proposals to purchase and manage a country holiday centre in France, and there to accommodate, educate and otherwise care for the children (aged 12 & 10), were realistic. The father had no chance of persuading the court to set those findings aside. The trial judge's findings as to whether M's desire to move was motivated by her desire to eliminate the father from the children's lives were ambiguous. However, the judge was perfectly entitled to make the order he did, because there had been a protracted history of alleged physical, emotional and sexual abuse of M by F, and it would not be fatal to the permissibility of a proposed relocation abroad that such was part of the applicant's motivation so long as it was established that the applicant and the children were in real fear of the other parent and deeply and reasonably yearned for escape abroad from his sphere of influence. Such would not be the "selfish" desire to exclude the father from the lives of the children which, in Payne, at [40] (a), Thorpe LJ held should lead to refusal of an application for ocation. The Guardian in this case said in her twelve years experience she had never come across children as keen to move forward in their lives as were these two children and that in her professional opinion the hostile views expressed by them about F were genuine.

The judge did make a comment that he was concerned that not only would these children be losing a father, but also fifteen other close members of their family on their father's side. He expressed concern that this point never seems to be raised in relocation cases. However in this case he returns to the bedrock problem of the children's complete and utter opposition to contact.

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RE B (A CHILD) [2007] EWCA Civ 1055 CA (Thorpe LJ, Lloyd LJ, Toulson LJ)

Appeal  upheld against a decision to grant a prohibited steps order preventing the mother from removing her child to Northern Ireland where the judge had not been directed to the appropriate principles to apply.

The appellant mother (M) appealed against a decision granting the respondent father (F) a prohibited steps order. M came from Northern Ireland whilst F and his family lived in an English town. After moving to the town, M had a brief relationship with F and they later had a child. F applied for a prohibited steps order to prevent M from transferring residence of the child to Northern Ireland. In reaching his decision the judge referred to H (Children: Residence Order: Relocation), Re (2001) EWCA Civ 1338, (2001) 2 FLR 1277.

HELD: A court had the power to issue a prohibited steps order or to attach conditions to a residence order under s.11(7). It also had the power to sanction the removal of a child from the United Kingdom under s.13. The removal of a child to Northern Ireland did not require the approval of the court. Thorpe himself acknowledged that his own decision in Re H did not sufficiently reflect the fact that the imposition of conditions on a residence order restricting the primary carer's right to choose his or her place of residence was a truly exceptional order, Re H considered. It was also appropriate to draw attention to the treatment of the topic by Professor Lowe in International Movement of Children, (Jordans, 2004), p.90. Therefore, the judge decided a finely balanced issue on an unsustainable direction as to the principles to be applied. It was unfortunate that he did not have his attention drawn to E (Minors) (Residence: Imposition of Conditions), Re (1997) 2 FLR 638 CA (Civ Div), S (A Child) (Residence Order: Condition) (No1), Re (2001) EWCA Civ 847, (2001) 3 FCR 154 and the passage in Professor Lowe's book and accordingly his judgment could not stand, Re E and Re S considered. The decision was set aside and a retrial ordered.

"By way of conclusion I would only endorse the treatment of this topic by Professor Lowe and his co-authors in International Movement of Children, published by Jordans in 2004. He, at page 90, considers movement of children within the United Kingdom, and reviewing the cases, concludes that a primary carer faced with an application for a prohibited steps order or the imposition of conditions on a residence order, will not, save in an exceptional case, be restrained by the court, because for the court so to do would be an unsustainable restriction on adult liberties and would be likely to have an adverse effect on the welfare of the child by denying the primary carer reasonable freedom of choice.

Professor Lowe takes that proposition from the decision in Re: E and in paragraph 6.4 he states:

"The correct approach, therefore, is to look at the issue of where the children will live as one of the relevant factors in the context of the cross-applications for residence, and not as a separate issue divorced from the question of residence. If the case is finely balanced between the respective advantages and disadvantages of the parents, the proposals put forward by each parent will assume considerable importance. If one parent's plan is to remove the children against their wishes to a part of the country less suitable for them, it is an important factor to be taken into account by the court

and might persuade the court in some cases to make a residence order in favour of the other parent."

Appeal allowed

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RE W (CHILDREN) [2008] EWCA Civ 538, CA (Civ Div) (Thorpe LJ, Wilson LJ, Charles J) 20/5/2008

The appellant mother (M) appealed against the refusal of her application to remove her three children permanently to Sweden. M and her former husband (F), who divorced in 2006, were both Swedish nationals. The family lived in a spacious home in London. The children were aged 15, 13 and 11, and were particularly intelligent and mature. M wished to return to Sweden, where housing and private education for the children would be much cheaper. The children supported the move to Sweden. Their wishes and feelings were advanced in the report of a CAFCASS officer. The CAFCASS officer applied her own analysis to the children's statement, with the result that she ended up advising the judge to exercise a degree of caution in evaluating the children's stated wishes. The judge had raised the possibility of meeting the children, but the matter was not pursued. M submitted that the judge had erred in weighing up the financial factors, in particular the effect that refusal of her application would have upon the London home that she and her children would be sharing. M further argued that the judge did not sufficiently consider the wishes and feelings of the children.

HELD: (1) (Per Thorpe L.J.) The judge had erred in finding that M would have enough equity to acquire an "acceptable" or "satisfactory" house in London if the family home had to be sold. (2) (Per Thorpe L.J.) The participation of children in private law Children Act proceedings was a matter of particular topical concern. The Family Justice Council's sub-committee "The Voice of the Child" was strongly in favour of judges seeing children much more frequently than in the past. The eldest child, in particular, was an autonomous person with clear rights, and was entitled to be heard. That could be achieved in three ways: separate representation, discussion with the judge, or through a CAFCASS officer. That third method had caused the eldest child to feel that her wishes were insufficiently considered by the judge, because they were diminished by the very professional whom she trusted to advance them. That conclusion might have been avoided had the judge had a meeting with the children.  Thorpe also commented that it would have been preferable for the same Judge to have heard both the financial applications and the children case together since they were clearly interlinked.  He put some emphasis on the fact that the financial picture would mean that mother & the children could not be re-housed to an adequate or satisfactory standard in the UK (the children were very attached to remaining in the family home which could not be retained if they were to remain in the UK, whereas a smaller fund would buy a comparably appointed home in Sweden). (3) (Per Wilson L.J.)  The wishes and feelings of the children had not been satisfactorily weighed by the judge, probably because they were conveyed to him by a CAFCASS officer who was making a recommendation which conflicted with those wishes. The difficult position of the CAFCASS officer might have given rise to a strong argument for the separate representation of the children by a guardian ad litem other than her, or she could have sent a copy of her report to the children and asked for their written comments on it for transmission to the judge. Alternatively, their interviews with her could have been videotaped and shown to the judge. The discretion of judges to meet children privately was largely untrammelled by authority, and was the exception rather than the norm. It was a matter of concern that Thorpe L.J.'s expression of opinion that it was regrettable that the judge did not meet the children might pre-emptively alter the current neutral state of affairs, especially considering that the judge had not been pressed to see the children and was not criticised by counsel in the appeal for not having done so.  He himself would not have met the children until after he had given judgment.  Wilson LJ also agreed that the inability to maintain the family home in the UK was a highly significant factor: as he put it the ‘wheels came off' the father's opposition when it became plain that the lifestyle could not be maintained to a sufficient standard in the UK and said that the money case and the children case should have been heard together. (4) (Per Charles J.) Although the views of the children, and in particular the eldest, had not been given sufficient weight, it was not clear that a meeting between the judge and the children would have been appropriate or would have provided a fair solution (and he also would not have met with them). Before any meeting between the judge and a child took place, the following needed to be carefully addressed: (a) the format, structure, content and purpose of the meeting; (b) the role of the judge; (c) the participation and presence of others; (d) what was to be passed on to anyone not present; (e) how matters asserted by a child to the judge were to be tested; (f) whether anything that was not passed on to the parties could be taken into account by the judge; (g) what explanation was to be given to the child before and after the meeting.

Appeal allowed

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S v DE P (2008) [2008] EWHC 1798 (Fam), Fam Div (Charles J) 14/5/2008

In this Child Abduction case, the applicant father (F) applied for an order to require his ex-wife (M) to return the children of their marriage to Argentina. F and M had separated. At the time of the separation, both F and M lived in Argentina. By an agreement that was subsequently ratified by the Argentinean courts M was given sole custody of the children. M later left Argentina to study in the United Kingdom. Initially, the children were placed in the custody of F but, by a further agreement, the children were allowed to come to the UK with M and live with her for one year. At the end of that year, M and the children returned to Argentina. M applied to the Argentinean court for further permission to have the children live with her in the UK and permission was granted for a further year. M and the children remained in the UK even after the expiry of the one-year period envisaged by the Argentinean order and F brought the instant application. The issue for determination was whether the children should be returned to Argentina for the purpose of enabling that state to make a decision as to their medium to long term welfare.  The father it seemed was likely to take up work in Australia and would be seeking to take the children there with him.

HELD: The children had expressed a real and compelling wish to remain in the UK. They had become committed to their schooling and their community and developed a circle of friends; they were clearly psychologically and physically settled in the UK. Ordering their return to Argentina would result in a considerable disruption to their education and life. On that basis, the children's medium to long term welfare needs would be best served by their remaining in the UK.

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RE B (CHILDREN) [2008] EWCA Civ 1034, CA (Civ Div) (Thorpe LJ, Rix LJ, Longmore LJ) 22/7/2008

The appellant mother (M) appealed against a decision of the judge to refuse her application for permission to relocate to Germany with her three children, who were aged nine, eight and two. M was of German origin. She had married the respondent father in 1998. They separated in 2006 after a violent incident which caused M to issue an application for a non-molestation order against F. The judge was asked to deal with two applications: M's application to relocate to Germany with the children and F's application for a residence order. An expert with child and adult psychological experience (B) was instructed; however, her report was confined to F's application for a residence order. When questioned at the hearing about M's application, B gave strong evidence to the effect that the consequence of relocation would be the portrayal of F as a negative influence not only by M but also by her family in Germany, which would be harmful and very regrettable. B stated that, if M were permitted to relocate, it was likely that the children would lose their relationship with F. The judge weighed M's depressive state, which was likely to be exacerbated by the refusal of her application, against the consequences of relocation and decided to refuse her application. M argued that she had been ambushed by the trenchant evidence given by the expert, who had not reported on the application to relocate and who was unaware that contact between the children and F was running smoothly.

HELD: (1) M deserved some sympathy in respect of the evidence given by the expert. However, the problem for her was that her counsel had raised no objection at the crucial moment to the expert's evidence. The judge had therefore been entitled to rely on that evidence. The judge had had to choose between two bad alternatives and she had been entitled to reach the conclusion that she had. (2) This was a tragic case, in which the outcomes of two hard-fought applications had been, if not certainly, probably damaging to the children. It was likely that such damage would endure until such time as M and F could work together for the children's sake.

Appeal dismissed.

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