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I’m Leaving on a Jet Plane, Don't Know When I’ll Be Back Again: Can I Take The Children With Me?

Jacqui Gilliatt, of 4 Brick Court, reviews the current law governing the relocation of children abroad and within the UK

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Jacqui Gilliatt, 4 Brick Court

This article will examine the law on relocating children to other countries and within the UK. These are heart-rending cases with drastic implications for the whole family. It is this that lies at the heart of the court's dilemma: for there is a more than usually stark reality – whatever the court's choice, the child is likely to suffer and we are dealing in the realm of least bad outcomes.

In a letter published in Family Law in November 2005 [1] , the Poel group [2] argued that despite the court's denial that there is any presumption in favour of an applicant for permission to remove, precedents and anecdotal evidence suggest otherwise. A review of the reported case law on these applications tends to suggest that they have a point. In a Resolution debate at the Law Society in September 2005 participants agreed by 77 votes to 19 (with 10 abstentions) that leave to remove is too easily granted.

Resolution says that there are currently 1,200 cases a year involving relocation applications and this is a huge increase over time. This is no doubt a corollary to the ease of modern travel and a reflection of a modern multicultural lifestyle. It remains the case, however, that almost all relocation applications are brought by maternal primary carers [3] and almost all of them (and 75% of the reported cases) have been granted eventually [4].

The Poel group [5] takes its name from the case of Poel v Poel [1970] 1 WLR 1469. In that case a mother applied for permission to take her three year old child to New Zealand to live with her new husband. She was expecting a second child with her husband. Father was only having 2 ½ hours a week contact. The court held that once a situation was established, following the separation of the parents, of the child living with a particular parent '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'. The reasons for not interfering were that otherwise considerable strains would be placed on the applicant carer with a consequent effect on the child's happiness and well-being.

It can perhaps rightly be said that there has been little significant change to the court's approach to relocation cases in the 37 years since this case was decided. Judicial thinking has been seemingly unaffected by the passing of the Children Act 1989 (and the introduction of the concept of parental responsibility) or the Human Rights Act 1998 (with the usual conclusion being reached that neither Act calls into question the validity of the existing approach). The reported case law is now extensive as the companion case summary article illustrates – over 80 cases are summarized. Despite this view – endorsed by the judiciary [6] - that there has been little significant change in the jurisprudence, there seems to be no shortage of challenges to decisions at first instance and successful appeals. One judge – Lord Justice Thorpe - attracts particular critical attention from those advocating reform and has been involved in the majority of recent decisions (30 of the more than 80 summarised). However, it should not go unnoticed that in Thorpe J's (as he then was) first reported decision on the matter [7] he in fact refused the applicant permission because he was concerned about the impact of the proposed removal on contact.

Thorpe LJ was one of the tribunal in the case of Payne v Payne [2001] 1 FLR 1052 [8]. This decision also involved an application to relocate to New Zealand by a mother and permission was granted at first instance and upheld on appeal. His essential thinking was this: '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.' He acknowledged that a review of judicial thinking over the previous thirty years demonstrated that relocation cases have been consistently decided upon the application of two propositions: the paramountcy of the child's welfare and the detrimental impact of refusing the primary carer's reasonable proposals for relocation on the welfare of the dependent children such that relocation would generally be granted unless it was incompatible with the welfare of the children. He emphasized, however, that this was not to say that there was any sort of legal presumption in favour of an applicant (as he had suggested in an earlier case [9] and the President, Dame Elizabeth Butler-Sloss, similarly ruled that there was no such presumption. Thorpe LJ said that he regretted using the expression and had done so in a non-legal sense. The heavy weight to be accorded to the reasonable proposals of the main carer did not mean that the burden of proof fell on the other side or that the outcome would be automatic unless the presumption was displaced.

The Law in brief
Permission is needed from the court to take a child out of the UK in the following situations:

In other words, if each parent shares parental responsibility, both must agree to the removal. In addition, leaving aside the possibility of any criminal sanction, the author would advise any parent who wishes to take a child out of the jurisdiction to seek the written consent of the other parent or carer whether or not they have parental reponsibility. Child abduction sanctions (ie orders for immediate return to the home jurisdiction) are increasingly widely accepted in many countries. The UK courts have a number of orders at their disposal to stop removal if the other parent learns of the intention. UK courts will also take a dim view of unilateral removal and this can cause untold damage to the main carer's case in the long run, including their claim to maintain their position as main carer.

The court's approach
The principles which can be distilled from the case law are as follows:

Most of these propositions are highlighted in the case of Payne but there are some cases where the court has agreed that the strict Payne approach cannot be applied. These include, for example, applications for temporary removal [11] , applications for internal relocation, applications made against a background of shared care between the parents [12] where two competing jurisdictions were fairly evenly balanced [13] and where one factor so clearly outweighed all others that it was not relevant to look at the others in any detail [14].

On a more informal level, it can be seen that the following tendencies emerge from the authorities:

Temporary Removal
A court is perhaps even more likely to grant an applicant permission to leave the country with the child on a temporary basis, whether for a holiday or for a longer time, for example, in order to pursue a career or study opportunity. In these cases the Payne principles are not generally likely to be applied with the same degree of scrutiny although there will still be an expectation of good planning and proper consideration of contact with all relevant family members. The applicant should still evidence this carefully. The respondent is best advised to focus on maximising the contact and ensuring that the applicant does return as planned and that it is not an application to leave permanently by stealth. Undertakings to return may be particularly relevant here since the court can be more readily persuaded that it can retain jurisdiction if the child's habitual residence is to remain in the UK. However, great care may be needed if the plan is to take the child to a non-Hague convention country as it may be extremely difficult to secure the child's return. This is where conditions such as the offering of securities and mirror orders may be critical.

Removal within the UK
The Children Act 1989 does not impose any explicit restrictions on the right of the primary carer to move within the United Kingdom and the courts have taken the view that it will not generally be appropriate to do so. However, there have been at least three important cases in which restrictions have been considered and indeed imposed [15]. There are particular parts of the UK which are notably difficult to access such as Devon and Cornwall or it may simply be that the distance between the parents will be so great after a move that contact will be frustrated. Again the Payne principles do not have to be applied but the welfare checklist always applies and the court does have power in an exceptional case to impose a condition on any residence order to ensure that a move does not take place.

Permanent removal: The plan and evidential support
The statement in support of any application to leave the jurisdiction needs to be extremely lengthy and detailed and it is false economy to cut corners in preparing this evidence. It should include:

What is quite clear from the authorities is that if the plan is not well-researched and evidenced, the application will fail at the first hurdle. Many of the cases where permission is refused are turned down for this reason, at least at first. But more importantly, the lack of forward thinking and planning raises other concerns about the realism of the carer or the genuineness of their motive to move. A particularly good example of this can be seen in an internal relocation case where a mother wanted to move to Newcastle [16]. She had no real connection there, had made no serious plans to relocate her business, had twice previously made applications to move to Australia, and indicated in evidence that if the Newcastle plan was rejected she would set her sights on Devon or Cornwall. It was not perhaps difficult for the court to reach the conclusion that she was not motivated by a genuine desire to move, but rather by a desire to thwart the relationship with the father.

The non-resident parent's approach
The first point to consider on learning of a proposed relocation application is whether any immediate steps need to be taken to protect the non-resident parent's position. This is less likely to be necessary if the resident parent is making an application to court as this tends to suggest that the applicant is willing to go through the proper channels. Similarly, if the non-resident parent has parental responsibility and the relocation proposed is to a country which has signed the Hague Convention, defensive steps are less likely to be necessary. If they are, necessary applications can be made to the court to prevent removal (and this can be done urgently and without notice, if necessary) or to prevent the issue of a passport or require a passport to be surrendered.

Once the immediate response has been dealt with, respondents to relocation applications should scrutinise the evidence with care and assist their representatives to pinpoint any weaknesses.

Tactical decisions will need to be made about whether to warn the other side of the weaknesses in the case before the hearing and what evidence should be offered in rebuttal and to emphasise the child's links with the UK, extended family etc. The evidence of the applicant will clearly repay checking and double checking. School places which are said to be available at the time of the application may not remain so. Employment offers are generally not open-ended. Immigration law into many countries may simply preclude emigration. Nothing should be taken for granted even if it is genuinely offered in support of the application.

One of the criticisms levelled at the UK courts in relation to relocation applications is that it takes insufficient account of research. There are two difficulties with this. There is some relevant research but firstly it is American and secondly Professor Judith Masson has pointed out that it does not stand up to scrutiny as supporting a particular view against relocation [17]. It is unlikely therefore that any general research / sociological evidence will assist the court. Specific expert evidence focussing on the facts of the particular case might do: for example, evidence showing the inability / unwillingness of the legal framework abroad to support orders made in the UK, or evidence about the particular child's vulnerability and the adverse impact of change [18].

When trying to decide whether to oppose the application or not bear in mind that there is a reason why the courts have been so worried about the adverse impact of refusing applications on the primary carer and consequently on the child. If you were successful in blocking the application the genuine applicant with a clear plan and a good reason for wanting to go is going to be extremely upset about it. This is bound to cause difficulties in the parental relationship and may well upset the child too at the state at which they have an understanding of what has gone on. This is particularly likely if there has been any previous understanding or agreement that the parent should be allowed to go or if you were planning to move abroad as a couple.

Very often the non-resident parent counters the relocation application with an application for residence. However, this will be pointless if the non-resident parent cannot put forward a case for a residence order in his or her favour that would stand a chance of success even if there were no relocation application. If a child is well-settled with the primary carer who is doing a perfectly good job and only has periodic contact with the other parent, the court is hardly likely to change the status quo. If the child is spending near enough equal time with each parent or the parent is not doing a particularly good job then it may be different. If a residence application is made the court should be provided with convincing evidence that the non-resident parent is in fact in a position to look after the child full-time.

It will also be important for the non-resident parent to demonstrate their commitment to contact. The figures are much disputed as to how many non-resident parents end up having no contact – a DCA study has shown a figure of 28%, another study 14% and yet another has called into question whether contact arrangements work well in most cases. If there has been regular contact this should be relatively easy to demonstrate. If there are good reasons why this has not been possible the court will need evidence about it. If the resident parent has frustrated contact then the court will need to make findings about the history of contact and why it has not happened and if the court finds against the resident parent on this, it may well undermine their application. Ironically, however, the courts have sometimes been persuaded that relocation is in order precisely because of the hostility between the parents since it can offer the advantage of taking the child out of the arena of dispute.

Clearly, the court will also wish to know about the impact of relocation on the non-resident parent's extended family as well and statements should be filed from as many members of the family who have regular contact with the child as possible. The statements should also set out any difficulties which family members would have with taking up contact in another country.

If the financial reality is such that the travel involved is likely to prove impossible detailed evidence should be put before the court about income and resources, the cost of travel to and accommodation in the other country, entitlement to holiday time and any other difficulty envisaged in taking trips abroad (for example, other family responsibilities which require the non-resident parent to remain in the UK such as an elderly parent or other children).

Other evidence that may well be relevant includes:

If it seems to be a strong application and it seems that it is more than likely to be granted it may be better to push for conditions, undertakings etc to maximise contact and avoid wasting money on litigation which could be better used in ensuring that contact can be taken up. There are huge advantages that modern technology can afford in terms of contact by email and webcam as well as telephone calls. There may also be compensations in the non-resident parent being able to spend time in another country, provided, of course, that this is affordable. Asking for a clear commitment to generous contact can also be a way of testing out the genuineness of the application (in other words an unreasonable refusal of reasonable contact proposals may give the court a picture of whether the applicant's hidden agenda is to cut a parent out of the child's life).

Examples of conditions that the court has imposed in removal cases are as follows:-

There is, of course, a very radical approach: for the non-resident parent to move to the country that the resident parent intends to go to. The author knows of at least one case where this happened. A father successfully opposed the making of a relocation order in respect of one of three children. It was surprising, perhaps, that the court in this case felt that sibling separation was appropriate but at the time the mother's reasons for going were somewhat unusual and rather suddenly developed. She had become disillusioned with life in the UK following a serious assault on her and went on holiday to Lanzarote [19]. Like so many English people, she fell in love with the place and the lifestyle it could afford her and her children. Two of the children were of an age where their wish to go with her was fairly determinative. The youngest child was very reluctant, but was also of an age where her wishes and feelings commanded serious respect. Mother and the eldest children moved abroad and father came himself for a holiday bringing the youngest child for contact. He too fell in love with the place and made arrangements to emigrate. All lived happily ever after! Unfortunately this is a very rare happy ending as an examination of the cases in the companion case summary article available on the 4 Brick Court website will show.

  1. Family Law Journal, November 2005
  2. An informal group of fathers who have been involved in relocation applications
    With the exception of the unreported case of Moodey v Field 1981, Egerton v Winchester 1983 and Re W [2006] 1 FCR 346 and 2 /3 others.
  3. Of the 80 cases in the companion case summary (which does include some applications for temporary / holiday removal and 2/3 internal relocation cases) the applications were refused in 20 cases and 3 were remitted for rehearing
  4. The Poel Group can be contacted by email to h.mozzi@howardkennedy.com or info@poelgroup.co.uk
  5. Re H (application to remove from jurisdiction) [1988] 1 FLR 848
  6. Re K [1992] 2 FLR 98
  7. http://www.bailii.org/ew/cases/EWCA/Civ/2001/166.html
  8. MH v GP (Child:Emigration) [1995] 2 FLR 106
  9. Removal will be an offence if any person connected (a parent, putative father, guardian or holder of a residence order) with a child takes or sends a child under 16 out of the UK without the appropriate consent (of mother, father with PR, guardian or holder of a residence order) or leave of the court for more than a month unless there is a belief that the consent has or would be granted, consent is not obtainable by reasonable steps or it is unreasonably withheld (this does not apply where the person refusing consent has a residence order or where removal is prohibited by a court order).
  10. Re A (Temporary Removal from the Jurisdiction) [2005] 1 FLR 639
  11. Re Y (Leave to Remove from the Jurisdiction) [2004] 2 FLR 330
  12. Re B [2005], CA, 21.4.05
  13. Re J 19.12.06, CA
  14. Re G [2006] UKHL 43, Re S 4.12.02
  15. http://www.bailii.org/ew/cases/EWCA/Civ/2002/1795.html, B v B [2004] 2 FLR 979
  16. B v B (Residence: Condition Limiting Geographic Area) [2004] 2 FLR 979
  17. Letter to editor Family Law Journal 2005
  18. Re S 4.12.02 at http://www.bailii.org/ew/cases/EWCA/Civ/2002/1795.html
  19. Curious as to why? – check out the pictures on this great website - http://www.lanzscapes.com

Jacqui Gilliatt
4 Brick Court
Chambers of Janet Mitchell
Temple London EC4Y 9AD
Tel: 020 7832 3200

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