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Leave to Remove Case Law and the Current Position September 2010.

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Presentation on theme: "Leave to Remove Case Law and the Current Position September 2010."— Presentation transcript:

1 Leave to Remove Case Law and the Current Position September 2010

2 Handouts by download pages of content; 2. fully hyperlinked to court forms, further reading, templates for statements and the documents required for a court bundle; 3. legal arguments; 4. links to the research supporting the need for shared care; 5. case law; 6. a one page guide on applying for a Prohibitive steps order and tips on handling the risk of abduction; 7. the relevance of, and links to the text of the Brussels II Revised Regulations, the Hague Convention on the Civil Aspects of International Child abduction and the UK Pakistan Protocol. All handouts/downloads are available free to attendees, from User name: custody Password: minefield

3 Case Law

4 Payne v Payne [2001] EWCA Civ 166 The binding authority The 2 hurdles: – That their motives for the move are genuine; – That their plans are well thought through. LJ Thorpe’s guidance: – (a) the welfare of the child is the paramount consideration; and – (b) 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. No authorities were presented to show that the comparative importance of fathers has changed in 40 years.

5 Wilson LJ’s comments on the Washington Declaration from the case Re H (A Child) [2010] EWCA Civ 915: 26. The Washington Declaration is, in my view, extremely interesting and, subject to an aside which I articulate at [27] below, it may prove not only to be a valuable means of harmonising the approaches of different jurisdictions to the determination of applications for permission to relocate but ultimately also to become the foundation of some reform of our domestic law. But it clearly has no such effect at the moment. Washington Declaration on International Family Relocation

6 What would be the impact on M of a refusal of her realistic proposal? As I have stated above I believe that M would accept an adverse decision responsibly and would work with F in co-parenting A in a meaningful way. She plainly has a significant attachment to this country and its way of life. AR (A Child: Relocation) [2010] EWHC 1346 (Fam)

7 (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding). A has stated that he expects to return to France. But at aged 5 I place little weight on this. It is likely to be a reflection of the views of his primary carer. (b) his physical, emotional and educational needs; A's physical and educational needs would be equally well met in London or Troyes. He has a strong emotional need to have a meaningful participation in his upbringing by F; this would be adversely affected were he to be relocated to France. AR (A Child: Relocation) [2010] EWHC 1346 (Fam)

8 (c) the likely effect on him of any change in his circumstances; To relocate A to France with the consequential effect on his relationship with F would, in my judgment be damaging to him. (d) his age, sex, background and any characteristics of his which the court considers relevant; I need record nothing further to that which I have written above. (e) any harm which he has suffered or is at risk of suffering; I need record nothing further to that which I have written above. (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; I need record nothing further to that which I have written above. AR (A Child: Relocation) [2010] EWHC 1346 (Fam)

9 (b) his physical, emotional and educational needs; A's physical and educational needs would be equally well met in London or Troyes. He has a strong emotional need to have a meaningful participation in his upbringing by F; this would be adversely affected were he to be relocated to France. (c) the likely effect on him of any change in his circumstances; To relocate A to France with the consequential effect on his relationship with F would, in my judgment be damaging to him. What would be the impact on M of a refusal of her realistic proposal? As I have stated above I believe that M would accept an adverse decision responsibly and would work with F in co-parenting A in a meaningful way. She plainly has a significant attachment to this country and its way of life.

10 While Mostyn J savages Thorpe’s ideology, and the guidance in Payne, he cannot ignore it. His judgment MAKES USE of Payne v Payne. No-one yet has successfully appealed a judgment based on the distress argument. Only an application to the Supreme Court can see the guidance in Payne be challenged, and for that the Court of Appeal must grant permission, which it has so far refused. AR (A Child: Relocation) [2010] EWHC 1346 (Fam)

11 D (Children) [2010] EWCA Civ 50 There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent. As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard. A challenge to Payne? G (Children) [2007] EWCA Civ 1497 A decision of this court stands and requires no correction, so long as the principles enunciated remain good. He (counsel) was not suggesting that Payne v Payne had been wrongly decided and should therefore be revisited. He was only suggesting that it was being widely misunderstood.

12 The arguments put forward to challenge the guidance in Payne v Payne: 1.that no authorities exist to support that the role of the father has changed in 40 years – they now do; 2.the weighting given to authorities which demonstrate the developmental/psychological/ sociological harm which children face when deprived substantive care from both parents; 3.the presumption that the mother would suffer such psychological harm from having her application refused so as to affect her ability to care for the children – no evidence exists to support this opinion; 4.that the guidance in Payne v Payne is out-of-date and needs review.

13 Re G (Children) 2005 FLR 166 The Judge at first instance had been wrong to refuse her application on the basis that she had not established that she would suffer psychiatric damage if her application was refused. The Judge had understated the impact of refusal on the mother and the children. Re W (Children) [2009] EWCA Civ 160 The Judge doubted that contact would be supported by the mother, given the history. The need to move to New Zealand to find work was questioned. There was no medical evidence to support that the mother would experience anything other than disappointment if her application was refused. Judicial Notice – The distress argument

14 Low Hurdles for the Applicant Re F v H (Children) [2007] EWCA Civ 692 Thorpe LJ rejects the father's appeal that the mother's plans are not sufficiently thought through since the mother was returning to a place she was familiar with, and as such, the 'hurdles' that she must satisfy are far lower. Re B (Leave to Remove: Impact of Refusal) [2005] 2FLR 239 It was held that there is no difference in principal between a mother who wishes to move to another country for reasons of lifestyle, and a mother who wishes to relocate to her country of origin or for an employment opportunity. Great weight should be given to the emotional and psychological well-being of the primary carer of the children.

15 Low Hurdles for the Applicant Re B (Removal from Jurisdiction); Re S (Removal from Jurisdiction)[2003] EWCA Civ 1149; [2003] 2 FLR 1043 Where a refusal of an application for leave to remove would jeopardise the continuation of a new family unit, then that is likely to be contrary to the child’s welfare.

16 Shared Residence Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330 Where there is effectively shared residence, then the court is unlikely to give permission to one parent to emigrate with the child. (See also Re D (Leave to Remove: Shared Residence) Re D (Leave to Remove: Shared Residence) EWHC (Fam) (2006) Mother's application to remove the child to America was granted despite the children's time having been previously equally divided between the parents' homes (under a mediated shared care agreement). Parents living in different countries was not a bar to shared residence.

17 Permission to relocate? Re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146 Permission to remove the children from the jurisdiction out to be sought where the father has an application pending before the court. Re T (A Child) [2001] (not reported) If there is a residence order in force, there is no need for a primary carer to seek the court's leave to remove from the jurisdiction for a relocation from England to Scotland as Scotland is part of the UK. Re V (Jurisdiction: Habitual Residence) [2001] 1 FLR 253 Where the mother is the sole holder of parental responsibility for the children, technically, the father's permission need not be sought before removing the children abroad. However, in Re V it was held that permission to remove the children from the jurisdiction of the courts should be sought where the father is having regular contact with the child.


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