Leave to Remove (LTR) is perhaps the worst application of case law that exists in family law. LTR is usually a request to the Court made by a resident parent (or parent with shared residence but having the majority of care) to emigrate with the children.  IF YOU ARE SEEKING TO PREVENT A LEAVE TO REMOVE APPLICATION, VISIT OUR PAGE LTR SAMPLE STATEMENT.

You would imagine that the courts would count heavily the implications of the children's removal from school, their social network and extended family, familiar homes, native culture, and their day to day relationship with their non resident parent (or parent with shared residence). Also the problems in maintaining contact once the child is removed from the Court's jurisdiction. Sadly this is rarely the case although the welfare checklist lists a variety of factors which should weigh heavily against LTR being granted. It is estimated that 90% of LTR cases go ahead with the main reason being that to refuse it would upset the resident parent and that this would (in theory) adversely impact on the child's welfare. This decision is rooted in the case law Payne v Payne from 2001 which has caused misery to many in the years that have followed and the separation of child from parent and grandparents.

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There is no qualified, independent psychological research that supports the view that refusal of a leave to remove application would affect the resident parent to the extent that their care of the child would suffer. There is a commonly held opinion that the application of the Payne v Payne case law simply ranks the resident parent's right to freedom of movement above the child's right to family life and the rights of the other members of the child's family. This goes against both human rights and Children Act legislation which states the child's welfare must be the paramount consideration.

In one case, I've heard a Judge comment that removal to Australia would be a wonderful adventure for the child. In the summing up was a nod of sympathy in the direction of the paternal grandparents and to the father who was devastated. As to how the child would react, there was no qualified consideration. CAFCASS had not even met the child concerned. The child's wishes and feelings weren't considered. Prior to LTR having been granted, the father had provided care for more than a third of the child's time and the child had their own bedroom at both the father's and grandparents' houses. Such matters were deemed less important than the mother's right for a lifestyle change.

In another case, due to the strong bond that existed between the father and child, CAFCASS recommended no contact for more than a year to allow the child to settle, or to essentially diminish or sever that bond.

How can you assess the impact on the child prior to the emigration having happened? It isn't possible and the Court makes these decisions blindly. There is no ‘come back’ since the child, once out of the Court’s jurisdiction, is no longer the Court’s problem. There is no research which assesses how children (or the resident / non-resident parents) have been affected in the long term by such decisions. There is, however, plenty of research that shows that when a child is deprived of a father they will be more likely to suffer mental health problems, addiction problems, teenage pregnancy and attain a lower academic achievement than their peer group. Sadly, the definitive case law predates this research, and the Courts haven’t yet caught up.

An article in family law week discusses LTR and the current thought processes of the Court in relation to parents seeking to remove their children abroad. This article is essential reading for those who are interested in LTR.

Leave to Remove. A lawyer's all too personal view.

There is a solution, that emigration with the children be prohibited until the youngest child is 16, should their removal from the UK result in the children being substantially deprived of their other parent and extended family. There could not be disappointment since resident parents would be aware of these restrictions at the point of separation and determining the children's living arrangements. The child's Article 8 'Human Right to family life' would be protected. It seems a little strange that the Children Act 1989 only allows a resident parent to holiday abroad with the children for a month at a time, but a request to the Court to emigrate permanently is rubber stamped on 90% of occasions. Were the Court to consider that the involvement of both parents in care to be a significant factor in ensuring the child's welfare (which research shows), this would uphold the paramountcy principle to enable LTR to be refused.

In the UK Courts, a parent's desire for a lifestyle change and their inability to put children's needs first often outway:

·         the loss of substantive care from the other parent;

·         the loss of relationships with the extended family; 

·         the financial and logistical impracticalities of making contact work. A parent’s ability to maintain contact is based on their income rather than the children’s need for contact; 

·         the disruption to the children's emotional development. It cannot be argued that such a drastic change in the status quo does not significantly impact on the child;

·         the loss of the children’s peer relationships and social network impacting on the children's social development;

·         the impact of removal from school, the children’s needing to adjust to different teaching styles, different teaching methods and syllabi, and the inevitable disruption on a child's educational development.

Within the Children Act 1989, the Welfare Checklist (s.1(3)) sets out the criteria that the Court must consider when making judgments that affect a child's life. Nowhere does it list 'not upsetting the resident parent' or that 'the resident parent's wishes outweigh the needs of the child'. Leave to Remove case law and its application goes against the key legislative principle set down by Parliament that a child's welfare must be the Court's paramount consideration. The vast majority of Leave to Remove judgments are fundamentally incompatible with the Human Rights Act 1998.

Definitive Case Law:

Payne v Payne- the case law which most routinely is cited in Court.

Re Y (Leave to Remove from Jurisdiction)[2004] 2 FLR 330. Where there is effectively shared residence, then the court is unlikely to give permission to one parent to emigrate with the child.

The following is taken from an article by Charles Russell, 3 February 2006 www.cr-law.co.uk

'The court has taken a mixed approach to this subject in recent cases. In the case of re Y (Leave to remove from the jurisdiction) 2004 2FLR 330, the American mother applied for permission to move with the child to the USAfrom Wales. The child was bilingual but Welsh was his preferred language. A shared care arrangement had been working well between the parents in Wales. The father opposed the mother’s application to remove the child and sought a Residence Order. The Judge held that, despite the fact that the mother would be compelled to continue living in Walesout of consideration for the child, it was the least detriment to the child to refuse the application and make a Shared Residence Order.

In re G (Children) 2005 2FLR 166, the Argentinean mother’s appeal against the judge’s refusal of her application to relocate was allowed. 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.

In 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.

Where an English mother whose family originated in France applied for leave to move to live in France with the children, permission was refused because evidence was given from a psychiatrist that the mother was in need of therapy and her coping mechanism was to “fly”. The Court held that the mother did not have the emotional stability to establish a new life in another country. Her current plans had not been sufficiently or carefully considered and the children’s contact with the father would be adversely affected. The children would also see much less of both sets of grandparents (R v R (Leave to Remove) 2005 1 FLR 687).

Where the proposed relocation abroad is temporary, the considerations relevant to an application for permanent relocation are not automatically applicable. Where a mother sought to take her daughter to South Africa for two years to carry out PhD research the temporary nature of the move and ability to maintain contact between the father and the child together with the adverse consequences to the mother’s career of refusal, outweighed the negative impact on the child (Re A (Temporary Removal from the Jurisdiction) 2005 1 FLR 639).'

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