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International Relocation of Children - Part 1

In the first part of a two-part review of relocation law, Clare Renton of 29 Bedford Row looks at recent developments, including the decision of Mostyn J in Re AR.

Clare Renton barrister of 29 Bedford Row

Clare Renton, barrister, 29 Bedford Row

Latest developments
In his paper "Relocation - The Search for Common Principles" at  the London Metropolitan  University inaugural conference on the 30th June 2010, Lord Justice Thorpe pointed out that in placing great weight on the reasonable wishes of the relocating custodial parent, the English court was  following a line of English authority which had evolved over 40 years. He went on to say that the approach in England was not that of a number of overseas courts. In his view the time had come when there should be an international convention or a way found of adopting an uniform approach.

At the heart of the problem lies the tension between dislocation of contact and the reasonable desire of the primary carer to relocate. Hence the practicality of enforcement of international contact orders is another central aspect of whether relocation is in the interest of the child.

Thorpe LJ referred to the meeting in March 2010 of 50 judges and experts who convened in Washington at a conference organised by the Hague Conference on Private International Law and the International Centre for Missing and Exploited Children. They agreed guidelines in respect of international family relocation including 'factors relevant to decisions on international relocation'.

The Washington Declaration on International Family Relocation states:
1.  In all applications concerning international relocation the best interests of the child should be the paramount (primary) consideration. Therefore, determinations should be made without any presumptions for or against relocation.
2. In order to identify more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors listed in no order of priority. The weight to be given to any one factor will vary from case to case.
3. i)  the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child's development, except if the contact is contrary to the child's best interest;
ii)  the views of the child having regard to the child's age and maturity;
iii) the parties' proposals for the practical arrangements to relocation, including accommodation schooling and employment;
iv) where relevant to the determination of the outcome, the reasons for seeking or opposing relocation;
v)  any history of family violence or abuse, whether physical or psychological;
vi) the history of the family and particularly the continuity and quality of past and current care and contact arrangements;
vii) pre-existing custody and access determinations;
viii) the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties;
ix) the nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation;
x)  whether the party's proposals for contact after relocation real estate, having regular regard to the cost of the family and the burden to the child;
xi) the enforceability of contact provisions ordered as a condition of relocation in the state of destination;
xii) issues of mobility for family members; and
xiii) any other such stances deemed to be relevant by the judge.

Meanwhile in Re AR (A Child: Relocation)  [2010] EWHC 1346 Mostyn J, in one of his first judgments from the High Court bench, refused leave to a mother to relocate to France and expressed the view:

"The [Washington Declaration on International Family Relocation] supplies a more balanced and neutral approach to a relocation application, as is the norm in many other jurisdictions. It specifically ordains a non-presumptive approach. It requires the court in a real rather than synthetic way to take into account the impact on both the child and the left-behind parent of the disruption of the periodicity and quantum of the prevailing contact arrangement. The hitherto decisive factor for us – the psychological impact on the thwarted primary carer – is relegated to a seemingly minor position at the back end of para 4(viii)."

In the recent decision of Re H (Lawtel 19/5/10) Wilson LJ considered the Declaration and stated at para 26:

"In that the principal charge against our guidance, as it stands, is that it ascribes too great a significance to the effect on the child of the negative impact upon the applicant of refusal of the application, one is interested to discern the way in which, in [4] of the declaration, that factor is addressed. One finds (does one not?) that it is not squarely addressed at all. The closest to any address of it is to be found in (viii), namely "the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties". Some may share my initial perplexity even at the terminology of (viii) in that it appears to train the consideration of the court not only upon impact "on the child" but also, and by way of contra-distinction, upon impact "on the parties" apparently irrespective of impact on the child. It is axiomatic that our notion of paramountcy excludes from consideration all factors which have no bearing on the child. But, that possible curiosity apart, there is no square address in (viii) of the impact upon the child likely to flow from negative impact upon the applicant of refusal of the application. Indeed the reference to the child's extended family, education and social life, seems almost to draw attention away from such a factor. I wonder whether consideration may need to be given as to whether, if the present law of England and Wales does indeed perhaps place excessive weight upon that factor, paragraph 4 of the declaration, as presently drawn, by contrast places insufficient weight upon it.

"I agree with this, up to a point. Certainly the factor of the impact on the thwarted primary carer deserves its own berth and as such deserves its due weight, no more, no less. The problem with the attribution of great weight to this particular factor is that, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions. The core question of the putative relocator is always "how would you react if leave were refused?" The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically. This is the reverse of the Judgment of Solomon, where of course selflessness and sacrifice received their due reward."

Writing of the Declaration in [2010] IFL 127 Thorpe LJ stated:

"Were England and Wales to subscribe to the text of the declaration, or anything in similar vein, it would represent a significant departure from the principles that our court has applied consistently since the decision in Poel v Poel [1970] 1 WLR 1469. The case for such a shift is not difficult to articulate. The principles stated in Poel were substantially founded on the concept of the custody or parent. Furthermore, there is an emerging body of significant research in various jurisdictions that must be brought into account."

In Re H (A Child)  (2010) CA (Civ Div) (Thorpe LJ, Etherton LJ, Morgan J) 20/5/2010 (lawtel ), the Court of Appeal dismissed a father's appeal from the grant of permission. The judgment at first instance was brief but contained all the judge's essential reasoning and findings and was sufficient to enable the parties to understand it.  The mother sought to remove their nine-year-old child (X) from the jurisdiction to Australia. F and M had had a relationship that resulted in the birth of X. After they separated M was granted an interim residency order and the parties engaged in various family proceedings that resulted in them appearing before the court on 12 occasions. Both F and M later made applications for residence orders. F proposed that X should live with him in England; M wanted X to live with her but indicated that she intended to move to Australia. The judge determined that M should be granted residency, with the effect that X would live with her in Australia. The judge also made a contact order. His judgment was delivered extempore and the transcript of the judgment ran to four pages. F contended: (1) The judgment was unacceptably brief and failed to fulfil the minimum requirement that it explain to the parents that it encompassed all the considerations set out by the Children Act 1989 s.13. (2) The judge should have appointed a guardian ad litem pursuant to the Family Proceedings Rules 1991 r.9.5. It was held: (1) The judge had directed himself by having regard to Payne v Payne (2001) EWCA Civ 166, (2001) Fam 473. The judgment was acceptably confined to the essential considerations of M's case and the evidence in support of it, and F's case and supporting evidence. He was under no duty to go through the welfare checklist paragraph by paragraph. (2) The appointment of a guardian ad litem remained  exceptional in line with the President's Direction on Representation of Children in Family Proceedings. There was no exceptional need in this case. The court also held that previous judgments regarding relocation remained relevant. 

The Statute
The Children Act 1989 section 13 provides: 

 "(1) Where a residence order is in force in respect of a  child no person may – .....

(b)  remove him from the United Kingdom;
 without the written consent of every person who has parental responsibility for the child or the leave of the court.

(2)  Subsection (1)(b) does not prohibit the removal of a child [from the jurisdiction], for a period of less than one month, by the person in whose favour the residence order is made."

Payne v Payne [2001] 1 FLR 1052
Payne v Payne is well known.   The case concerned an application for leave to remove a child aged 2 to New Zealand. Thorpe LJ said, at paragraph 40 (page 439):  

"To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion.

"Pose the question: (a) is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and well investigated? If the application fails either of these tests refusal will inevitably follow. (b) If however the application passes these tests then there must be a careful appraisal of the father'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 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 maternal family and homeland? (c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal? (d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare of the paramount consideration, directed by the statutory checklist in so far as appropriate." 

At paragraph 41 (page 440), Thorpe LJ continued: 

"In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor."

Thorpe LJ and Dame Elizabeth Butler-Sloss P stated that there is no presumption in favour of relocation. Thorpe LJ said, at para 26 of his judgment, that relocation cases had been consistently decided on the propositions that the welfare of the child was paramount and that "refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children."

By  way of coda Philip Cayford QC, counsel for the father in Payne, has made it known that, 10 years on, the  pessimism  was well founded. The child lost contact with his father. Contact in New Zealand did not take place.   

Temporary removal and relocation from a third state
The Payne approach does not apply to temporary removals form the jurisdiction. The more temporary the period the less regard should be paid to Payne.  Nor does the Payne approach apply in a situation where the parties are not resident in England but have a contest, for example, whether to relocate from Dubai to England or Denmark. In such a situation the welfare checklist must be applied more generally although the impact on the mother and the practically of her proposals if she comes to England will be a scrutinised.

The following cases considered temporary removals.   
(I) Re A  [2005] Fam Law 215: The court had to balance the mother's desire to move abroad for two years for her professional development against the child's need for contact with the father.
(II) Re S and O  [2009] Fam Law 114: The court granted the father leave to take the children to Barbados on his undertaking to put in place an agreement  that if he did not bring the children back by the due date he would lose his interest  in the home in England. There was no time to put in place a mirror order. 
 (III) Re N [2006] Fam Law 737 CA : The mother of a 9 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, especially since he did not speak Slovak and the maternal family did not speak English. The trial judge refused the application and the mother appealed.

Allowing the appeal and granting permission for a Summer 2007 visit – the court held:
(i) The judge had failed to take into account relevant positive factors and had over-estimated negative factors.
(ii) He had failed to give weight to the evidence that the child had had happy experiences dealing with the mother's family in the past.
(iii) The court was not satisfied that the mother could not take time off work to accompany the child in the preceding summer and considered that if she did so, this would better prepare the child for an unaccompanied visit the following year.

Re N is an example of how a primary carer may make holiday arrangements for a child without the consent of others who have parental responsibility. The court considered that there is an interesting legal point as to whether the permission under CA 1989 Section 13(2) permits a carer to make arrangements and rely upon others to care for the child while he or she is abroad. 

Post-Payne permament relocation cases
Since Payne there have been a number of cases in this area. In  by no means all  have  the applicants been successful. Each case is fact specific. The cases are difficult. Examples are:-  
(I)  Re B  [2003] 2 FLR 1043; The Court of Appeal stressed that where the mother cared for the children within a new family, the impact on the new family including the stepfather of the child was to be considered.

(II) Re Y  [2004] 2 FLR 330; The court refused leave where care of the child had been shared since separation and the child had been brought up to be bilingual in Welsh and English. Removal to the USA would cause him significant emotional and educational loss.

(III) Re J (Leave to Remove) [2007] Fam Law 375 CA, [2007] EWHC 1897: Two older children aged 15 and 11 refused any contact with their mother and lived with their father. The younger child, aged 6, lived with the mother and had frequent contact with their father and the older children. In the course of cross residence applications by the parents, the father made an application for leave to remove the two elder children to Bulgaria. The father presented himself as financially desperate. The judge granted permission to re-locate to Bulgaria with the two children. The mother appealed arguing that the father had failed to establish that practical arrangements as to home, school and employment had been made. It was held   (1) The judge ultimately had to decide between mother's proposals for a residence order to be implemented in this jurisdiction and a father's residence order application to be implemented in another state. In this case  Payne v Payne principles were barely applicable. (2)  There was the extraordinary consideration in this case that a sound future for the family could be achieved only by the father recovering an earning capacity in some other economy. (3)  The judge had been right to give great weight to the practicalities.

Underlying this case was the polarisation of the two older children against their mother and economic necessity. With children at ages of 15  and 11  cases become increasingly child-driven. The court specifically expressed that Payne v Payne principles were barely applicable in the case. 
(IV) Re MK (A child) [2007] 1FLR 432 CA: The Brazilian mother had a child by a man she met in England. Contact was agreed and F's application for residence and parental responsibility was heard with M's application to relocate to Brazil with her child. The judge refused her application on the basis that she was not satisfied with her practical proposals for relocation  and in particular with the evidence that she could practise law in Brazil. The CAFCASS officer stated that the effect on the mother would be limited if she could not return.    It was held on appeal by the mother:-
(i) The judge's rejection of M's credibility was unfair and unwarranted. No allowance was made for the fact that she was testifying in her second language without the services of an interpreter. Furthermore, she had told the CAFCASS officer that she would have to take further exams.
(ii) If the mother earned her living that would facilitate contact.
(iii) Leave was granted only in principle by the Court of Appeal.  Thorpe LJ directed that each party file statements with regard to contact.
(iv) Strong orders were needed in both England and Brazil to ensure that F could continue his relationship.

The Court of Appeal accepted that the process below was seriously flawed But, in granting  outline leave, left the question of contact to be pursued. Outline leave is not unusual.   

(V)  Re B (Leave to Remove)  [2007]  1 FLR   333:  The  parents were both homosexual and held UK  passports. M's partner was the father's sister. F had acted as sperm donor merely to impregnate the mother. Since the birth in 2002 contact had taken place only by court order and acrimonious incidents had occurred. M took the child in breach of a court order on one occasion and made  unfounded accusations of  sexual abuse. She had undertaken not to make any such allegations in future.  M offered contact in USA and claimed that she had changed her attitude to F.  F sought a sole residence order on the ground that that only in the UK could his contact  be promoted.
It was held:
(i) The draconian option of change of residence had not been made out convincingly. The mother was a good carer. The mother had "moved on" more than the father.
(ii) A shared residence order was unlikely to work in the circumstances of this case  because of the very high level of hostility. 
(iii) The experts' view that the level of contact precluded a developing relationship in the UK was in this case decisive.
(iv) Relocation would reduce the pressure on the mother and contact in the USA was the best chance of developing the relationship with the father.
(v) The mother had much better employment prospects in the USA and would be devastated if she could not relocate and this would impact on the child. 
This case shows that contact is not always central to the Payne exercise. The experts decided that the prospect of contact was better if relocation was permitted than if it was refused.

(VI)   Re G  [2008] 1 FLR 1587: There was a joint residence order and generous  contact to the children, aged 6 and 9.  The CAFCASS officer had stated that the children were strongly bonded to their father and suggested that the mother might have underestimated the effect of relocation. The mother was granted leave to remove to Germany and the father appealed. The Court of Appeal (Thorpe and Wall LJJ) deflected the attack on Payne by deciding that there was no social shift which required Payne to be reconsidered and that the guidelines in Payne were helpful.  

Next week Clare will consider the practicalities involved in handling such cases where the outcome often depends upon  detailed evidence. '