Originally published in the Family Law Journal.
Section 13(1)(b) of the Children Act 1989 (the 1989 Act) requires that a parent wishing to remove a child permanently from the jurisdiction must obtain the leave of the court in order to do so. Section 13(2) states that if a parent has the benefit of a residence order then they can remove the child for a period of up to one month.
This article will look at the various factors the courts have had to consider in recent cases where the primary carer has applied to remove their child temporarily or permanently from the jurisdiction.
TEMPORARY REMOVAL
In the recent case of Re N (Leave to remove: Holiday) [2006] the mother of a nine-year-old child sought permission to send the child, unaccompanied, on a two-week holiday during the summer of 2006 to visit his mother's family in Slovakia. The father opposed the application on the basis that the child was too young to travel alone and because of language difficulties. The case raised the question of the extent to which s13 of the 1989 Act allows a primary carer to make holiday arrangements for a child without the consent of others who have parental responsibility.
The key issue in Re N was whether the provision in s13(1)(b) of the 1989 Act (as detailed above) extends to the situation where the carer makes the arrangements but then relies on others to care for the child while they are abroad. In Re N the parties agreed that an order was desirable, so the issue was not fully determined by the Court of Appeal.
The provisions of the Child Abduction Act (CAA) 1984 may give some assistance. Section 1 provides:
- ...a person connected with a child under the age of 16
commits an offence if he takes or sends the child out of the
United Kingdom without the appropriate consent.
- A person is connected with a child& if
a. he is a parent of the child;&
-
...'the appropriate consent', in relation
to a child, means
a. the consent of each of the following
- the child's mother;
- the child's father, if he has parental
responsibility for him;&
- the child's mother;
Under s1(4) an offence is not committed if the person who takes or sends the child out without obtaining the appropriate consent has a residence order in their favour. Section 1(5) provides a defence if the person acts in the belief that:
- the other party has consented, or would do so if they
were aware of all the relevant circumstances;
- or the person has taken all reasonable steps to
communicate with the other party but has been unable to do
so; or
- the other party has unreasonably refused to
consent.
Based on the provision in s1 CAA 1984, if there is no residence order in force primary carers must not take or send the child abroad without consent, unless they believe that the other has consented or would consent, in which case they may exercise their parental responsibility to take or send the child abroad.
If a primary carer is aware, or suspects, that the other would not consent, it would be sensible that they place the issue before the court and seek a specific issue order. Equally, if the non-resident parent is unhappy at the prospect of the child's removal, they should apply to the court for a prohibited steps order.
Where there is a residence order then the non-resident parent can apply for a condition to be attached to the order in terms similar to that of the resident parent ie for removal of the child for purposes of a holiday for up to one month allowing leave to remove for a short holiday. This may help many families with day-to-day routine holiday arrangements where there is no suggestion that a permanent removal may take place.
ECONOMIC CONSIDERATIONS
H (Mother) v F (Father) (Refusal of leave to remove a child from the jurisdiction) [2006] concerned a mother wishing to relocate permanently to Jamaica and take her son, then aged nearly ten, with her. She was from Jamaica originally and wished to return there with her own father to set up a B&B in a property owned by him. The child's father was from the Caribbean.
The mother was unemployed while living in England, as was the child's father. The child had regular contact with his father while they were in England. The mother argued that their son would receive an education at least equal to or better than the English system in Jamaica. She also argued that she would be able to generate an income with her plans for a B&B.
The father, however, felt that this idea of moving to Jamaica was proposed by the mother not to provide for a better life for their son, but out of malice towards him following his remarriage. He was concerned that the mother had not thought through all the ramifications and details of the proposed move. He also believed that it would be against his son's best interest to deny him the opportunity of continued regular contact with his father.
Jeremy Richardson QC, sitting as a deputy High Court judge, considered carefully the factors set out in Payne v Payne [2001] (see box, p22). In so doing he found that s1 of the 1989 Act applied, that the child's welfare was paramount and that there was no presumption in favour of the applicant mother.
Although her reasonable proposal to relocate carried great weight, the Court had to consider the mother's motivation, as well as considering her plans to move in detail ensuring that they were realistic, practical and well thought through. He also took into account the father's motivation.
Bearing all those factors in mind, Mr Richardson QC decided that, although he considered the mother's proposal to be genuine and not malicious or from a desire to terminate contact, he felt that she was prone to act irrationally and might stop contact once she had moved if she became angry with the father.
Having considered her business plans carefully he also felt that the B&B would not provide much by way of an income and that the merits of that did not outweigh the upheaval of removing the child from his life in England, where the mother could find employment to better her circumstances.
Weighing up all the factors to be considered, Mr Richardson QC refused leave to the mother to remove the child from England.
RELIGIOUS FACTORS
Re A (Leave to remove: Cultural and religious considerations) [2006] concerned two Iraqi parents who were Shia Muslims, separated and living in England. The son, who was aged nine, remained with his mother. She had remarried another Iraqi who lived and worked in Holland and with whom she now had another child. The mother applied for leave to take her son to Holland to live with his stepfather. She also had family members living in Holland.
The father of the boy was the 'mantle head' of his family and by tradition his son would follow him in that position in the future. To enable this to happen the father felt that the son should have continued and extensive contact with him. However, even while they were in England the parents relationship had broken down extensively following their divorce and this had an emotional effect on the child.
According to CAFCASS the child had also shown a consistent wish to go to live in Holland with his mother and that he had become attached to her new husband. CAFCASS also reported that even if the mother's application were refused and the child continued to live in England, his relationship with his father was likely to be strained unless his parents were able to have a better relationship to facilitate good contact.
Decision in Re A
The application for leave was granted. McFarlane J held that although neither parent was particularly religious it was important that the child had some contact with his father to facilitate his guidance in the Muslim faith. Evidence had been obtained from the family committee in Iraq that would eventually decide whether the child would become the 'mantle head'.
It was apparent that because the child was not living with his father and was in the care of his stepfather, the committee had already decided he would not become the 'mantle head'. Therefore a move to Holland would have no impact on the committee's decision if the child were to remain living with his mother regardless of which country they were in.
McFarlane J had considered the mother's plans to relocate and found that they were genuinely motivated both her new husband and her family lived in Holland. He expressed some concern about the plans, particularly surrounding the child's education, but felt that these were not insurmountable.
Refusing the application would have significant emotional effect on the mother and the stepfather could not move because of his work commitments and his care of his elderly parents. McFarlane J therefore granted the mother's application to move the child to Holland. The parents were also urged to attend mediation to help them improve their relationship, which would enable them to better parent their son together.
COMPLEX FAMILY BACKGROUND
Re B (Leave to remove) [2006] involved a biological mother who had previously taken her child to the US in defiance of a court order.
She applied to remove her child from the UK to return permanently to the US both to further her career and to care for her own mother, who lived in Miami. She also offered the father contact in the US. The father opposed the mother's application for leave to remove.
Background
The family situation was complex, in that the father was a homosexual who had impregnated the mother the partner of his lesbian sister by donating sperm.
There was disagreement between the parties as to the role that the father should play in the child's upbringing. Numerous acrimonious incidents led to only very limited contact between the father and the child for the first four years. The biological mother had also made accusations of abuse against the father and the child was a ward of court for a period of time. However, the father was eventually granted parental responsibility, the child was de-warded and contact resumed successfully.
Three-fold test
Sumner J heard the case and applied the three-fold test considered in Payne of:
- reasonability;
- motivation; and
- practicality.
He allowed the mother's application, finding that the concerns raised were not sufficient to change the primary carer from the mother to the father as there were no day-to-day concerns about the mother's care of the child. This was balanced by her acceptance of the father's role by virtue of his contact and that the father had shown great commitment to the child.
In considering motivation and practicality, Sumner J found that the impact on the mother should she be refused leave to relocate to the US would be 'dramatic, long-lasting, genuine and deep-felt' and that staying in England would increase the tension between the mother and father. While he considered the effect on the child of reduced contact with his father caused by the move, Sumner J was also creative in his approach ordering that an amount of money from the sale of the mother's home be retained by the court for the purpose of providing a travel fund for contact.
ISSUES OF EVIDENCE
In Re: M-K (A child) (Relocation outside the jurisdiction) [2006] the mother was a Brazilian national who met the father while living in England. The father refused her wish to return to Brazil with the child and sought residence and parental responsibility, contact having already been agreed.
First instance decision
The mother applied for leave to remove and at first instance this was denied, as the judge was not satisfied as to the practicalities of her proposals and further considered that her emotional and psychological well-being would not be shattered by refusal of the application. The court also made a shared residence order.
Court of Appeal decision The mother appealed and the Court of Appeal decided to allow the application in principle. The Court applied the now established three-fold test and found that the trial judge's exercise of discretion was flawed and the rejection of the mother's application and her credibility was unfair and unwarranted. Also, there had been insufficient allowance for her testimony being in her second language. They found that the trial judge had erroneously relied on the CAFCASS evidence and that her assessment of the practical proposals put forward by the mother was also flawed.
However, despite this, the Court of Appeal found that further evidence was required on behalf of the mother to satisfy it. Such evidence included:
- more information about the law in Brazil and the need for
orders to be made there to ensure that the child knew her
father, that her English heritage was fostered and that she
be brought up to be bilingual; and
- further information about specific contact
arrangements.
CONCLUSION
The lesson for practitioners from recent case law is that for most applications for leave to remove, Payne remains the leading authority. Even where the facts of an application are complex, the three-fold test (as applied in Re B) of reasonability, motivation and practicality, will need to be considered. In practical terms, creative and imaginative arrangements for contact should be proposed where possible and foreign jurisdiction issues examined carefully.
|
Re A (Leave to remove: Cultural and religious
considerations) Re B (Leave to remove) H (Mother) v F (Father) (Refusal of leave to
remove a child from the jurisdiction) Re: MK (A child) (Relocation outside the
jurisdiction) Re N (Leave to remove: Holiday) Payne v Payne |
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Payne v Payne [2001] factors to be considered
The leading case on leave to remove remains Payne v Payne [2001], where the mother sought leave to remove her child to her native New Zealand, a move opposed by the child's English father.
In summary, the judgment given by Thorpe LJ set out the factors to be considered, as follows:
- Is the applicant's application genuine, in the
sense that it is not motivated by some selfish desire to
exclude the respondent from the child's life?
-
Is the applicant's application realistic and
founded on practical proposals both well researched and
investigated?
If the application fails either of these tests refusal will inevitably follow.
- If, however, the application passes tests (a) and (b)
then there must be a careful appraisal of the
respondent's opposition: is it motivated by genuine
concern for the future of the child's welfare or is
it driven by some ulterior motive? What would be the extent
of the detriment to the respondent and their future
relationship with the child were the application granted? To
what extend would that be offset by extension of the
child's relationship with the applicant's
family and homeland?
- What would be the impact on the applicant if their
realistic proposal is refused?
- The outcome of the appraisals set out in (c) and (d) must
then be brought into an overriding review of the
child's welfare as the paramount consideration,
directed by the statutory checklist insofar as
appropriate.
Dame Butler-Sloss commented in the judgment:
There is no presumption in favour of the application, but reasonable proposals made by the applicant parent, the refusal of which would have adverse consequences upon the stability of the new family and therefore an adverse effect upon the welfare of the child, continue to be a factor of great weight.
She then went on to set out the following additional points to be considered:
- The welfare of the child is always paramount.
- There is no presumption created by s13(1)(b) in favour of
the applicant parent.
- The reasonable proposals of the parent with a residence
order wishing to live abroad carry great weight.
- Consequently the proposals have to be scrutinised with
care and the court needs to be satisfied that there is
genuine motivation for the move and not the intention to
bring contact between the child and the other parent to an
end.
- The effect upon the applicant parent and the new family
of the child of a refusal of leave is very important.
- The effect upon the child of the denial of contact with
the other parent and in some cases their family is very
important.
- The opportunity for continuing contact between the child
and the parent left behind may be very significant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
