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Removal from the Jurisdiction: Case Library
A summary of over 80 cases on removal from the jurisdiction.
REMOVAL FROM THE JURISDICTION
POEL V POEL [1970] 1 WLR 1469, CA (Winn, Sachs LJJ, Sir Gordon Wilmer) 5
NASH V NASH [1973] 2 ALL ER 704, CA (Davies, Cairns, Stamp LJJ) 5
BEVAN v BEVAN [1974] 4 Fam Law 126, CA (Davies, Stamp, Scarman LJJ) 6
A V A [1980] 1 FLR 380, CA (Ormrod, Brandon & Brightman LJJ) 6
MURRAY 1980, CA (30.7.80, UNREPORTED) 6
MOODEY V FIELD, 1981, CA (13.2.81, UNREPORTED), CA Transcript 71 6
RE V 1982 (CA, NI) (10.8.82 UNREPORTED) 7
HURWITT V HURWITT [1982] 3 FLR 194, CA (Ormrod, Cumming-Bruce LJJ, Sir David Cairns) 7
BARNES V TYRRELL [1982] 3 FLR 240, CA (Ormrod, Dunn LJJ, Purchas J) 7
CHAMBERLAIN V DE LA MARE (1983) 4 FLR 434, CA (Ormrod, Watkins, Griffiths) 8
EGERTON V WINCHESTER 1983, CA (3.2.83, UNREPORTED) 9
H v H 1985, CA (7.10.85 UNREPORTED) 9
LONSLOW V HENNIG [1986] 2 FLR 378, CA (Dillon, Lloyd, Nicholls) 9
BELTON V BELTON [1987] 2 FLR 343, CA (Purchas LJ, Butler Sloss J) 10
RE F (A WARD) (LEAVE TO REMOVE WARD OUT OF THE JURISDICTION) [1988] 2 FLR 116, CA (Kerr LJ, Eastham J) 10
RE R 1989, CA (12.7.89, UNREPORTED) 11
TYLER V TYLER, [1989] 2 FLR 158, CA (Kerr LJ, Ewbank J) 11
M V M (MINORS) (REMOVAL FROM JURISDICTION) [1992] 2 FLR 303, CA (Nourse LJ, Cazalet J) 12
RE D (A MINOR) (CHILD: REMOVAL FROM JURISDICTION) [1992] 1 FLR 637, CA (Balcombe, Staughton) 12
RE K (A MINOR) (REMOVAL FROM JURISDICTION) [1992] 2 FLR 98, Fam Div (Thorpe J) 13
M V M (REMOVAL FROM THE JURISDICTION) [1993] 1 FCR 5, (1993) Fam Law 396, CA (Nolan LJ, Hollis J) 14
M V A (WARDSHIP: REMOVAL FROM JURISDICTION) [1993] 2 FLR 715, Fam Div (Bracewell J) 14
RE B (MINORS) (REMOVAL FROM JURISDICTION) [1994] 2 FCR 309, Fam Law 11 (Glidewell LJ, Cazelet J) 15
RE W [1994] 1 FCR 842, Fam Div (Thorpe J) 16
S (RESIDENCE ORDER: FORUM CONVENIENS) 1995 1 FLR 314, Fam Div, Thorpe J 16
H V H (RESIDENCE ORDER: LEAVE TO REMOVE FROM JURISDICTION) [1995] 1 FLR 529, CA (Staughton LJ, Wall J) 17
MH V GP (CHILD: EMIGRATION) [1995] 2 FLR 106, Fam Div (Thorpe J) 17
RE WB (RESIDENCE ORDER), [1995] 2 FLR 1023, Fam Div (Thorpe J) 18
RE T (REMOVAL FROM JURISDICTION) [1996] 2 FLR 352, 3 FCR 97, CA (Butler-Sloss, Thorpe LJJ) 19
RE S (MINORS) CA 2/4/96 (Beldam, Waite, Henry LJJ) 19
RE E (RESIDENCE: IMPOSITION OF CONDITIONS) [1997] 2 FLR 638, CA, Butler-Sloss, Saville & Thorpe LJJ 20
RE R (MINORS) CA 16.12.97 (Simon Brown LJ, Hale J) 21
RE H (APPLICATION TO REMOVE FROM JURISDICTION) [1998] 1 FLR 848, CA (Thorpe, Pill LJJ) 21
RE K (APPLICATION TO REMOVE FROM JURISDICTION) [1998] 2 FLR 1006, Fam Div (Charles J) 22
RE T (STAYING CONTACT IN NON-CONVENTION COUNTRIES) [1999] 1 FLR 262, Fam Div (Hughes J) 23
C v M (Children) 30 July 1999 CA (Thorpe LJ, Sir Oliver Popplewell) 23
RE S (REMOVAL FROM JURISDICTION) [1999] 1 FLR 850. 24
RE A (SECURITY FOR RETURN TO JURISDICTION) (NOTE) [1999] 2 FLR 1 24
RE M (LEAVE TO REMOVE CHILD FROM JURISDICTION) [1999] 2 FLR 334, Fam Div (Hale J) 25
RE K [1999] Family Law 220, 1 FLR 583 (Hirst LJ, Cazalet J) 26
RE K (REMOVAL FROM JURISDICTION: PRACTICE) [1999] 2 FLR 1084 (Thorpe LJ, Popplewell J) 26
B (CHILDREN) 2000 CA, LTL 5.7.00, [2001] 1 FCR 108 (Schiemann, Thorpe LJJ) 27
RE P (A CHILD: MIRROR ORDERS) [2000] 1 FLR 43, Fam Div (Singer J) 27
RE A (PERMISSION TO REMOVE CHILD FROM JURISDICTION: HUMAN RIGHTS) [2000] 2 FLR 225 (Ward, Buxton LJJ) 28
RE C (LEAVE TO REMOVE FROM JURISDICTION) [2000] 2 FLR 457, CA (Morritt, Thorpe, Chadwick LJJ) 28
RE L (REMOVAL FROM JURISDICTION: HOLIDAY) [2001] 1 FLR 241, Fam Div, Connell J 29
RE J (CHILDREN) (RESIDENCE: EXPERT EVIDENCE) [2001] 2 FCR 44, CA, Hale, Arden LJJ 29
PAYNE V PAYNE (2001), EWCA CIV 166, [2001] 1 FLR 1052 (Dame Elizabeth Butler-Sloss P, Thorpe and Robert Walker LJJ) 30
RE X AND Y (LEAVE TO REMOVE FROM JURISDICTION: NO ORDER PRINCIPLE) [2001] 2 FLR 118, Fam Div, Munby J 31
RE S (LEAVE TO REMOVE FROM JURISDICTION: SECURING RETURN FROM HOLIDAY) [2001] 2 FLR 506, Fam Div, Hogg J 32
RE H (CHILDREN) (RESIDENCE ORDER: CONDITION) [2001] EWCA Civ 1338, [2001] 2 FLR 1277 (Thorpe LJ, Astill J) 33
T V R (2001) FAM DIV (CHARLES J) 2/11/2001. 34
RE A (A CHILD) 2002. 35
L V L (2002) [2002] EWHC 2577 (FAM), [2003] 1 FLR 900, Fam Div (Johnson J) 35
RE R (A CHILD) 2002, CA, 26/6/02 (Thorpe LJ, Wall J) 36
RE S (A CHILD) 4/12/02, EWCA Civ 1795, President, Waller, Laws LJJ 37
RE M (A CHILD) (2003), CA, 28/3/03 (Thorpe, Sedley) 38
RE M (A CHILD) (2003) CA (THORPE LJ, ARDEN LJ, BLACK J) 6/2/2003 38
RE C (CHILDREN) (2003), [2003] EWCA CIV 413, CA (Butler-Sloss, Thorpe, Arden) 39
RE C [2003] EWHC 596 Fam, [2003] 1 FLR 1066, Fam Div (Charles J) 40
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) 41
RE Y (LEAVE TO REMOVE FROM JURISDICTION) [2004] 2 FLR 330, Fam Div, Hedley J 42
B V B (RESIDENCE: CONDITION LIMITING GEOGRAPHIC AREA) [2004] 2 FLR 979, Fam Div, Sally Bradley QC. 42
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 43
RE S (CHILDREN) 10/11/04 LAWTEL, [2005] 1 FCR 471, CA, Thorpe, Wall LJJ, Black J 43
R V R [2005] 1 FLR 687, Fam Div, Baron J 44
RE G (CHILDREN) 2005, [2005] EWCA Civ 170, [2005] 2 FLR 166, Thorpe, Smith LJJ, Times 28 February 2005, CA. 44
RE B (LEAVE TO REMOVE: IMPACTOF REFUSAL) [2005] 2 FLR 239, CA, Thorpe, May & Scott Baker LJJ 45
RE B (CHILDREN) 2005, [2005] EWCA Civ 643, LTL 21/4/05, CA, Thorpe, Scott Baker, Wall LJJ 45
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. 46
RE W (A CHILD) 2005, [2005] EWCA Civ 1614, LTL 17/11/05, [2006] 1 FCR 346, CA, Thorpe, Rix, Wilson LJJ 46
RE D 21.11.05, CA, SEDLEY, WALL LJJ, CASETRACK. 47
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 47
RE A-M 21.6.06, CA WILSON LJ, CASETRACK. 48
RE N (LEAVE TO REMOVE: HOLIDAY) [2006] 2 FLR 1124, CA, Thorpe & Smith LJJ 48
RE H 9.11.06 CA WILSON LJ, CASETRACK. 49
RE H 30.11.06 CA THORPE, HOOPER, MOSES LJJ, CASETRACK. 50
JC V CS 16.11.06, [2006] EWHC 2891 (Fam), LTL, Fam Div, Sumner J 50
RE J [2006] EWCA Civ 1897, 19.12.06, CA, LTL (UNREPORTED ELSEWHERE), Thorpe, Carnwath, Wall LJJ 51
RE G (CHILDREN) [2006] UKHL 43, 26.7.06, 2 FLR 629. 52
RE B (LEAVE TO REMOVE) [2007] 1 FLR 333, [2006] EWHC 1783 Fam, LTL 26/7/06 Fam Div, Sumner J 53
RE MK (RELOCATION OUTSIDE JURISDICTION) [2007] 1 FLR 432, CA Thorpe, Arden, Wilson LJJ 54
RE H 2007, 8.2.07, LTL (UNREPORTED ELSEWHERE), CA, Thorpe, Thomas, Wall LJJ 55
REMOVAL FROM THE JURISDICTION
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.'
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.'
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).
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.
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.
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.
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.
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.
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.
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.
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.'
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.'
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.'
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.
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'.
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'.
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.
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.'
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.
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.'
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.'
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.
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.
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.'
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'
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.'
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'.
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.
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.
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.
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).
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.
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.
http://www.bailii.org/ew/cases/EWCA/Civ/1999/2039.html
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.
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.
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.
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'.
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.
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).
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.
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.
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.
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.'
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.
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.
http://www.bailii.org/ew/cases/EWCA/Civ/2001/166.html
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.'
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.
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.
http://www.bailii.org/ew/cases/EWCA/Civ/2001/1338.html
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.
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.
http://www.bailii.org/ew/cases/EWCA/Civ/2002/1313.html
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.
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.
http://www.bailii.org/ew/cases/EWCA/Civ/2002/1046.html
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.
http://www.bailii.org/ew/cases/EWCA/Civ/2002/1795.html
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.
http://www.bailii.org/ew/cases/EWCA/Civ/2003/601.html
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.
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.
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.
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.
http://www.bailii.org/ew/cases/EWCA/Civ/2003/1149.html
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.
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.
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.
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.
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.
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 th
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