Sue Spencer considers recent guidance from the Court of Appeal on applications to remove a child from the jurisdiction
Contested applications for permission to remove a child from the jurisdiction involve a difficult decision for the courts. Two recent decisions of the Court of Appeal offer useful guidance. Re S [2004] All ER (D) 172 (Nov), considered the impact of the actual reasons for permanent removal. Wilson v Auld [2004] All ER (D) 80 (Nov), also reported in The Times on 10 November as Re A, considered temporary, as opposed to permanent, removal.
The starting point for any discussion of permanent removal from the jurisdiction is the case of Payne v Payne [2001] EWCA Civ 166; [2001] Fam 473. In that case, the child was four years old, and had lived for a period in New Zealand, from where the mother came, and in the UK, from where the father came. The father had substantial contact, amounting to 23 out of each 56 days. The mother felt isolated in London and wanted to go home with the child to New Zealand. The father's argument before the Court of Appeal was that there was no presumption in favour of the applicant, that the importance of his contact had not been fully recognised, and that his human rights had been violated. All this, he said, required the court to reject previous case law and re-formulate its approach to this question.
The Court of Appeal, in judgments of Lord Justice Thorpe and Dame Elizabeth Butler-Sloss, formulated guidelines for permanent removal cases:
The court also concluded that the father's human rights were engaged, but not violated by the process or the decision.
Before the principles in Payne can be applied, it is necessary for it to be agreed or established that the person seeking leave to remove is in fact the primary carer. In Payne, the father had made an application for residence, and the mother cross-applied for leave to remove. The father's application was dealt with first, and dismissed.
In Re S, there was no question that the mother was the primary carer. The father had had contact, arranged by consent, on a fortnightly basis with one period of holiday contact. He worked abroad a lot himself.
The mother's family had moved to Spain during the marriage and she now wished to join them there with the children. She had, the judge found, genuine and plausible reasons for her move, and had put forward a full plan for the children's residence, education and their contact with the father. Nonetheless, the judge refused the application, finding that the proposed contact arrangement of the father flying to Spain was too expensive, and that this was a 'lifestyle' choice, not forced on the mother, thereby displacing the guidelines in Payne.
The mother succeeded on appeal. The court said that this was a classic case of its type, and that the mother's desire to relocate was a natural one. Even if it were to be labelled a 'lifestyle' choice, and indeed even if it had simply been that, without family connection in the foreign jurisdiction, the guidelines in Payne were to be applied in all cases where leave was sought to remove the child permanently from the jurisdiction.
The case of Wilson v Auld is different. In that case, the child was four years old and care was shared, though the child did spend five nights a week with the mother.
The mother obtained an academic posting in her specialist area, which included the chance to obtain a PhD and, as part of that, to study for two years in South Africa. She wished to take the child with her. The father opposed this.
At first instance, the judge found that the mother's opportunity was a serious and important one, and that she might well lose out in her career if she did not take this chance. Nonetheless, following the authority of Payne, she refused permission. On appeal, the Court of Appeal found that the judge had misdirected herself, and that Payne had little or no relevance in an application for temporary removal. The judge had also erred in undervaluing the mother's career prospects, which were concrete, not a fantasy, and would lead to good future employment prospects in the UK once this period was over.
What is missing from the reports so far available, is discussion of the possibility of transferring residence to the father, at least for the period the mother was out of the jurisdiction. The older the child, or the greater the child's special needs at any age, the harder it may be to persuade a court that the child will be better off being uprooted than left in the jurisdiction with the other parent, provided that parent had played a full role in the child's care since separation. The parent travelling abroad could then enjoy the substantial contact being offered to the other parent as a sine qua non of the application and still pursue a career (or 'lifestyle') choice without impediment.
Payne has, for several years now, given comfort to the primary carer who wishes to re-locate permanently abroad. Re S reinforces the clear guidelines set out in that case. But if the primary carer's case is not child-focused and coherent, that party will not succeed, as in R v R [2004] All ER (D) 169 (Nov).
Wilson v Auld gives some comfort to the primary carer who wants to relocate temporarily. In both cases, the application should deal imaginatively with the means of regular contact available wherever in the world people may be, including telephone, e-mail, instant messaging and Web cams.
In the case of a relatively short-term/temporary removal, despite Wilson v Auld, the carer should, before making such an application, be confident that the court will not decide that temporarily, the child can in fact stay in the jurisdiction and live with the other parent, thereby ensuring that the (former) primary carer can pursue plans abroad without loss, and the child's education can continue without interruption.
District Judge Sue Spencer sits at Leeds Combined Court Centre
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