We recently obtained leave for a client to remove their child from the jurisdiction to live in Europe. Amongst the things we achieved was
- a change of primary carer and
- a final order from start to finish in 3 months.
It is not however always that straightforward.
So what are the factors the Court takes in to account in cases where a parent wants to take the child abroad.
The starting point is that the Court always considers the child’s interests as the paramount consideration.
If there are siblings and an older sibling strongly wishes to relocate it does not follow that the Court will approve the younger siblings also going just to avoid separation of siblings. In an interesting 2011 case (Re S) the Court considered this situation after leave was granted to a father to take two boys to Canada to live based on a letter written by the eldest boy strongly wishing to relocate to Canada was also signed by his younger brother. Both boys had until that point lived with their mother. On appeal the court overturned the decision to permit the father to remove the younger child on the basis that the lower court had failed to address his welfare needs independantly of his elder brother.
Another 2011 case is important for establishing that every case must be decided on its own facts and not in accordance with guidelines set down in earlier cases. The problem sometimes is that lawyers look at an appeal court decision which purports to lay down principles and then apply this to every situation that comes after. So in 2001 a case called Payne and Payne laid down some guiding principles one of which was the impact on the applicant of a refusal of the application (eg the frestrated parent may suffer emotional harm and this may impact on their relationship and or ability to care for the child). Although this case set out other considerations (the first of which was the child’s welfare being paramount) it became synonymous with an implied assumption that this factor carried some extra weight that might persuad the court in favour of (in particular) a primary carer’s application to relocate if the plan were well thought out.
This position was however challenged and a new direction taken following research and international discussion at judicial level about presumptions that life abroad was “rosy” in all removal cases and that there should be a presumption in favour of allowing relocation based on the impact on the unsuccessful applicant parent of refusal.
The case that changed the English Court’s direction was MK v CK a 2011 case.