Will the court allow a separated parent to relocate abroad with children if this leaves the other parent with little or no contact?   Davies and Partners Solicitors’ specialist Family Team consider the outcome following a recent Court of Appeal case – Re K (Children) [2011] EWCA Civ 793.

Are you wishing to take your children to live abroad? Or is your ex partner?

Last week’s judgment in the case of Re K (Children) [2001] EWCA Civ 793, in the Court of Appeal, has thrown new light on how these cases may be decided in future.

The case concerned an appeal by a father against an Order permitting his former wife to relocate to Canada with their two children. 

The mother was Canadian, the father Polish.  They met in Canada in 1992 and later moved to England.  They married in 2004 and had two daughters, now aged 4 and 2.  They separated in July 2010.

Both worked in the banking industry and both worked less than full time to enable them to be more involved with the children.  They shared the care of the children under a shared residence order made in August 2010.   The children spent five nights with their father and nine nights with their mother in every fourteen-day period.  The mother had the assistance of a nanny whilst at work.  The father cared for the children unaided.  As a result the girls spent more daylight hours in the company of the father than their mother.

The mother applied for permission to relocate to Canada with the children.  She wanted to go home to enjoy the emotional and material support of her parents following the breakdown of her relationship with the father.  The father objected on the basis of his commitment to the girls and the significance of the shared care arrangement. CAFCASS had provided a report on the issue recommending that the mother’s application be refused, although it did observe that should the mother still wish to return to Canada in three or four years time, the father’s acceptance of this, would probably be in the best interests of the children.   However, Her Honour Judge Bevington granted the mother’s application and the father appealed.

The leading case on this subject is Payne v Payne [2001] EWCA Civ 166, in which the Court of Appeal agreed with the County Court’s decision to grant permission to a divorced mother to move back to New Zealand with her daughter, against the wishes of the young girl’s father.

In Payne v Payne the following guidance is set out and has been applied in a succession of subsequent cases:

1. First, pose the question:
   Is the application of the relocating parent genuine and not motivated by a desire to exclude the other parent from the child’s life?

2. Is the application realistic: Is it supported by practical proposals that are well-researched and investigated?

3. If the application fails either of these tests it will be refused.

4. If the application passes these tests there must be a careful appraisal of the resisting parent’s opposition.  Is it motivated by a genuine concern for the welfare of the child or is it driven by some other ulterior motive? What would be the extent of the detriment to the opposing parent’s relationship with the child?  To what extent would that be off-set by the benefit to the child of progressing a relationship with the relocating parent’s family and homeland?

5. What would be the impact on the parent seeking to relocate either as a single parent or as a new spouse, of a refusal of an application based upon realistic proposals?

6. The answers to these questions must be brought into a review of the child’s welfare as the paramount consideration.

However, Payne v Payne has come in for serious criticism over the last few years for placing too much emphasis on the wishes and feelings of a relocating parent when assessing a child’s best interests and giving insufficient consideration to the harm done to the relationship between the children and the parent left behind.

Dame Elizabeth Butler-Sloss’s controversial conclusion in Payne v Payne was that:

“The mother’s reasons for her desire to return to New Zealand were appropriate and entirely understandable.  Her situation in England was not a happy one.  The judge found that the effect of her being forced to stay in England would be devastating.  He found that her unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to the child.  The father who has a close relationship with his daughter would be able to afford to visit her or have her visit him two or three times a year which mitigated the loss to the child and to him”.

Not surprisingly, critics take the view that this is incorrect and that children’s interests are better served if they have two parents to raise them.

Last week’s Court of Appeal judgment in the case of Re K(Children) [2011] EWCA Civ 793 will be seen by them as a step in the right direction.  The Court of Appeal allowed the father’s appeal.  Their Lordships agreed that the only principle to come from Payne v Payne was that the welfare of the child is paramount.  The rest is guidance only, to be applied or distinguished depending on the circumstances. 

Lord Justice Thorpe’s opinion was that the above guidance in Payne v Payne is only applicable where the applicant is the primary carer.  Where parents share the burden of caring for children in “more or less equal proportions”, whether as a result of a “shared residence” order or not, this guidance should not be used.   Lady Justice Black took the view that the Payne guidance should not be ignored even in a shared care case but that the weight attached to the relevant factors should alter depending upon the facts of the case.    

Either way, this judgement shows us that in cases where the parent opposing a move abroad has significant contact with their children, the parent proposing to relocate will have an uphill struggle in persuading the court that the relocation is in the best interests of the children.

If you wish to see a solicitor for advice on this issue or any other Family matter please contact our Specialist Family Team:

Tel:      Bristol:             01454 619619

Gloucester:     01452 612345            

Birmingham:   0121 616 4450

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