Leave to Remove - The Custody Minefield

Leave to Remove - Case Law and Sample Statement

See our Home Page for the latest Leave to Remove News. We also recommend you visit our campaign website www.relocationcampaign.co.uk and download our Briefing Report. Please also visit our campaign site and ask your Member of Parliament to support children being better protected in relocation cases. Email them a copy of our research report. You can also now download our factsheet on leave to remove.

Leave to Remove applications are typically made to the court by the resident parent (or a parent with shared residence) to seek the court's permission to emigrate with the children.

The applications are brought under section 13(1) of the Children Act 1989 which reads:

13 Change of child's name or removal from jurisdiction
(1) Where a residence order is in force with respect to a child, no person may -
(a) cause the child to be known by a new surname; or
(b) remove him from the United Kingdom;
without either the written consent of every person who has parental responsibility for the child or the leave of the court.

What should I do if I become aware that my ex-partner wishes to emigrate with our children?
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If you can afford to, we strongly suggest you take legal advice from a solicitor experienced in international relocation cases. The charity Reunite can also provide you with useful information. Reunite also provides a valuable factsheet on steps you can take if you are concerned that the children's other parent might abduct the children and take them abroad (remove the children without your, or the court's agreement).
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If your ex-partner has a residence order, they cannot legally take the children abroad for a period of more than one month (at a time) without either the agreement of each person who has legal parental responsibility for the children or failing this, the leave of the court (the court's permission). If a residence order is in place, legally, the parent who wishes to emigrate with the children must make an application to the court if the other holders of parental responsibility refuse to agree.
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If you are the children's father and you do not have parental responsibility for the children (mothers automatically have parental responsibility), or if no residence order is in force and you disagree with the emigration, you should apply to the court for a Prohibitive Steps Order. The court may then direct that the emigrating parents plans and both parents motives are considered before 'leave to remove' (the court's permission) is granted. It would be hoped that the court would also consider whether the move is in the children's best interests (read on, below).
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While leave to remove applications are often granted, the court's involvement may still be useful, as arrangements for contact should be agreed before the emigration goes ahead. This may involve increased holiday time for the parent who remains in the UK, decisions concerning who covers the cost of travel, mirror orders (orders for contact made in the relocation country), or other measures to help ensure contact goes ahead as ordered.
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Be aware that once the children are habitually resident in a foreign country, enforcement of orders can be very difficult. You are likely to have to travel to the country and seek a contact order in the country where the children live. This will involve legal, travel and accommodation costs.
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If the children are emigrating to a country inside the European Union, be aware that the UK Court will retain jurisdiction for three months after the children have emigrated. This is set out in the Brussels II Revised Regulations (BIIR) which provides in article 9 that in cases within the European Union, jurisdiction is retained by the original State of habitual residence which makes the contact order for 3 months following the lawful removal of the child in order that the contact order may be modified, if required, after which time jurisdiction passes to the new country. You should contact Reunite for more information concerning BIIR and enforcement under those regulations.
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What the Court considers when reaching a decision
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In the case law Payne v Payne, Lord Justice Thorpe set out the two hurdles which the resident parent should satisfy before their application to emigrate with the children is considered:
That their motives for the move are genuine;
That their plans are well thought through.
Circumstance which may assist someone in defending against a leave to remove application are:
that the motives of the applicant (parent wishing to take the children abroad) involve seeking to limit, reduce or prevent the child's relationship with their non-resident parent due to continued hostility;
that the plans for the move and the child's subsequent care are not practical;
there exist concerns about the resident parent's ability to provide care;
there is a lack of any support structure abroad should the resident parent be ill, or the child be ill etc;
that a strong bond exists between the child and non-resident parent;
that the child currently benefits from a shared care arrangement between the resident / non-resident parent;
the child is sufficiently mature to understand what impact the move would have on their life and wishes to remain in the UK.
The circumstances which make a Leave to Remove application more likely to be granted are:
it can be demonstrated that refusal of leave will be sufficiently emotionally or psychologically harmful to the resident parent or their step-parent that it impacts on the care of the child.
that the non-resident parent has not seen their children often;
that there are no concerns as to the resident parent's ability to provide care;
that the plans for the move are well thought through;
that there is no intention to disrupt the relationship between the child(ren) and the other parent;
a support structure exists to assist the resident parent with the child care (although this is not essential);
that the plans for continued contact with the non-resident parent are practical;
the resident parent has remarried;
the children have step-brothers / sisters within the resident parent's new relationship (the Court would rarely agree to the new family being divided);
the child is sufficiently mature to understand what impact the move would have on their life and wishes to emigrate with the resident parent.

The Welfare Checklist, in section 1(3) of the Children Act 1989, lists a variety of welfare related factors which the court should consider when deciding any matter involving children.

You would imagine that such things as the impact on the child of being removed from school, the loss of their social network and extended family, the loss of familiarity with their home environment, removal from their native culture, and the loss or significant change to their day-to-day relationship with their non-resident parent (or parent with shared residence) would carry great weight with the court. You would be wrong.

It is estimated that 90% of LTR cases succeed with the main reason being that to refuse the application would cause the resident parent such distress 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 provides the main guidance for Leave to Remove cases.

The impact on the primary carer of leave to remove being refused

In the case Payne v Payne, Lord Justice Thorpe set out the guidance for trial judges to follow in leave to remove cases.

26. In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:

(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.
Again, while it is said that the welfare of the child should be the court's paramount consideration, it is our view that the impact on the primary carer is considered foremost.
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Our opinion was echoed by the New Zealand court of appeal in 2005 when they discarded Payne v Payne as an authority in leave to remove cases 'as this case emphasised the weight of one factor above all others'. It was felt that the impact on the resident parent of refusal, in practice, outweighed other child welfare related matters. We would agree that this often happens. In New Zealand, it is generally held that, where both parents can provide for the welfare of the child, the Court should conclude that this is in the child's best interests, and therefore not allow relocation. [Family Court of New Zealand - 'Relocation: An International View from the Bench'].
Human Rights
One question we are often asked concerns the relevance of human rights in leave to remove cases. The parent wishing to move cites their right to freedom of movement, both parents cite their right to family life (which would be affected should either parent win) and the child clearly has a right to family life as well.
This matter was address by Dame Butler-Sloss in Payne v Payne (paras 81 and 82). Article 8(2) of the Human Rights Act recognises that a court may interfere with the right to family life, where it does so in accordance with the law and where it is necessary for the rights and freedoms of others.
The welfare of the child is of crucial importance, and where in conflict with a parent's rights, the child's rights take precidence.
Shared Residence Over Distance
A Shared Residence Order may be appropriate should parents live in different countries, but will depend on the amount of time they spend in each household. It is worth noting the judgment in Re F and the comments by Lord Justice Thorpe and Lord Justice Wilson on this subject:
'The judge's approach is in my opinion founded on sound principle. As this court has said recently, a shared residence order must reflect the underlying reality of where the children live their lives. The fact that the parents' homes are separated by a considerable distance does not preclude the possibility that the children's year will be divided between the homes of the two separated parents in such a ways as to validate the making of a shared residence order. This case is a good example of how, in reality, the order expressed by the judge, in providing for the continency that the mother moves to Scotland and the father remains in England, results in a routine that sees the firls established in an Edinburgh home during the school terms times, and in a Hampshire home during the school holidays. My Lord has worked out the extend to which the mother's half share of the main school holidays will be eroded if the father foregoes much of his term time weekend contact. In reality the mother will be paired down to her irreducible minimum of 12 days. That ensures that the children will have their father's home as their home during school half terms and almost all the school holidays'- Lord Justice Thorpe
'But like my Lord, I consider it perfectly apt to say, without stretching language, that, were the girls to spend term-time with the mother in Edinburgh and all half-terms and almost all school holidays with the father in Hampshire, they would have the benefit of residence with each parent in each of the homes.'- Lord Justice Wilson
More Recent Case Law
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In a recent international leave to remove case, Re W, the trial judge challenged counsel's argument that the mother would be adversely affected should her application be refused. The Judge pointed out that there was no evidence to suggest that the mother would suffer any more than disappointment, and refused her application. The mother appealed the decision, and her counsel criticised the Judge for his view. In the Court of Appeal, Lord Justice Wall found that the Judge was entitled to reach that conclusion based on the evidence before him.
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The Judge in Re W, on the matter of the impact of refusal on the mother, had said:
28. It is a very important consideration. I have to say that I have no medical evidence of significant depression. I heard the mother come back when she was re-called and say that she was suffering and would suffer more if I turned her down. Mr Rowlands put it well when he said there will be very great unhappiness as a result of my decision one side or the other. The father also has had to have some medicaments for depression. It is not a case where I am able to say that the mother will be so savagely or severely damaged that this will get through to the children. She will be disappointed but she will have to consider what she can best do to overcome it if I turn down her application.
Re W is an important case. The trial judge was right that the psychological impact on the primary carer is important, but simply one factor among others of equal and arguably greater importance. Like any argument, there needs to be evidence to support it. 'The psychological impact on the primary carer' mantra should not simply be an unsubstantiated trump card in a barrister's deck.
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The Need for Change - TCM's Opinion
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At the time of Payne v Payne, the court lacked the expert research which has been published in the years following. The research raises serious child welfare considerations when children are separated from a parent. This research still is not given sufficient weight by the courts when considering leave to remove applications since Payne v Payne remains the leading authority.
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Consider the following studies published after 2001. I have placed an emphasis on the parts of the research that relate to fathers, and have done so since, in Payne v Payne, there was an assumption that the primary carer and parent wishing to emigrate would be the mother. The research clearly supports that fathers have an essential role (as do mothers), and deprivation of a parent causes harm. This is not a matter of parental rights, but child welfare:
a) The February 2009 Children's Society Report based on the experiences of 30,000 children found that 'a child's performance at secondary school, self-esteem and well being as an adult is linked especially to the father's input' and 'children are 40% more likely to suffer mental health problems when separated from their fathers' and 'On average, children are less likely to fail at school or suffer depression the more they see their separated father.'
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b] The 2003 Department for Education and Skill's own research which concluded 'Fathers play an extremely important role in their children's lives and a plethora of research indicates that father involvement is significantly related to positive child outcomes' and 'Father involvement in children's education at age 7 predicts higher educational attainment by age 20, in both boys and girls.'
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c] The report by the University of British Columbia published in December 2008 entitled 'Child Custody, Access and Parental Responsibility' found that 'Sole maternal custody often leads to parental alienation and father absence which is associated with negative child outcomes.' The research discovered that '85% of youth in prison are fatherless', '71% of high school dropouts are fatherless', '90% of runaway children are fatherless', 'and fatherless youth exhibit higher levels of depression and suicide, delinquency, promiscuity and teen pregnancy, behavioural problems and illicit and licit substance abuse.' Equally as concerning were the findings of these and a wide range of other reports that concluded 'These studies found that fatherless youth are more likely to be victims of exploitation and abuse, as father absence through divorce is strongly associated with diminished self-concepts in children (Parish 1987).'
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d] In 2002, the University of Oxford's Department of Social Policy and Social Work found that girls whose fathers are involved in their upbringing are less likely to have mental health problems in later life whilst good father relations can prevent boys from getting into trouble with the police. Dr Eirini Flouri and Dr Ann Buchanan, co-authors of the research also found that 'Good father-child relationships are association with an absence of emotional and behavioural difficulties in adolescence and greater academic motivation too'. Their study is based on the experiences of 17,000 children, stretching back over 40 years.
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e] A further study by Dr Eirini Flouri and Dr Ann Buchanan is even more telling. From the summary of their research notes into 'The Role of Father Involvement and Mother Involvement in Adolescent's Psychological Wellbeing' their study of '2,722 British adolescents aged 14-18 explored whether paternal involvement can protect against low levels of well-being even when maternal involvement and risk and protective factors are controlled for. Results showed that although both father and mother involvement contributed significantly and independently to offspring happiness, father involvement had a stronger effect. Furthermore, the association between father involvement and happiness was not stronger for sons than for daughters. There was no evidence suggesting that family disruption weakens the association between father involvement and happiness, or that father involvement is more strongly related to offspring involvement when mother involvement is low rather than high.' In essence, children need both parents.
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f] Another study by Dr Eirini Flouri, published in 2004, entitled 'Early father's and mother's involvement and child's later educational outcomes', which concluded that 'early father involvement can be another protective factor in counteracting risk conditions that might lead to later low attainment levels.'
It is time that the precedents set by Poel v Poel and Payne v Payne (in leave to remove cases) were revisited. Legal opinion needs to be based on expert evidence, and to take account of educational, psychological and social research findings. That expert evidence is contained in our Parliamentary Briefing Report.
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It should be noted that under the jurisprudence of European Law, the welfare of the child is of crucial importance, and the judgment of Payne v Payne was made before the impacts on children were properly understood.
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It should also be noted that it is very difficult to prevent a leave to remove application from being granted by the courts.

Please read our Briefing Report on Child Welfare, Needs and Rights, and Relocation (click on the image to download).

Contact your MP, and ask them to sign Early Day Motion 2059. Use our 'Email Your MP' facility. It takes seconds. Click the image below.

Court Forms

To apply for a Prohibitive Steps Order to prevent a relocation, you should complete Form C100 and hand this into your local family court.

The court will not stop the parent from emigrating, but may decide that it is not in the children's best interests for them to relocate abroad. You must consider whether you are in a position to look after them if this happens. If you are, you should consider making a cross-application for residence (applying for the children to live with you if the other parent does emigrate). To do this, you must complete Form C2.

The leaflet 'Making an Application, Children and the Family Courts' from Her Majesty's Court Service will assist you in completing the forms. Again, we recommend you also seek legal advice if you can afford this.

CASE LAW

Case law is a useful tool, both in terms of considering what a court 'might' consider to be relevant and to help you focus on and prepare legal arguments to put before the court. Be aware that in family law, little is set in stone, and each judge has a wide ambit of discretion to decide what they consider to be in your children's best interests. Different judges can reach different decisions in identical cases.

As an example, case law sets out that shared residence orders may be made even when parents live in different countries. A Judge may decide that a shared residence order is not suitable for your children's circumstances and make a sole residence for the emigrating parent. So long as he explains his reasoning, were you to appeal, it is unlikely you would have the Judge's decision overturned. However, were the Judge to say that shared residence orders cannot be made due to the distances involved, the Judge would be plainly wrong.

If you wanted to ask the court to make a shared residence order, and your children were moving abroad, it would be useful to refer the court to the case Re F (see further down), and have a copy of the case law printed and filed with the court, so the court could see that such a decision was permissable.

Below, we provide a brief summary of key points in case law which may be of assistance in leave to remove cases.

Payne v Payne [2001] EWCA Civ 166

Key Points

Taken from paragraph 85, and Dame Elizabeth Butler-Sloss's summary recommending that a trial judge should consider the following factors as well as those matters which may be relevant to an individual case:

(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent (a court will not automatically grant leave to remove should a parent with residence make the application).

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.'

M v H [2008] EWCA 324 (Fam)

Key points

The parents' willingness to promote contact between the child and the other parent was a significant factor in the court's decision.

R v R (Leave to Remove) [2004] EWHC 2572 (Fam)

Key Points:

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.

Re W (Children) EWCA Civ 160
The mother intended moving to New Zealand, was on medication for depression and claimed she would be devastated if leave to remove was refused. The father's case was that his relationship with his children would all but cease if the mother's application was granted and there had previously been problems over contact.
Key points:
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.
The application was refused, and the trial judge's decision was upheld by the court of appeal.

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.

Re G (Children) 2005 FLR 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.

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.

Child Welfare Research

Don't take our word for the fact that the research published after Payne v Payne presents a compelling argument that the separation of children from a parent is counter to their best interests. Read it for yourself...

'A Good Childhood: Searching for values in a competitive age' by the Children's Society. Published in February 2009.

'The Impact of Parental Involvement in Children's Education' by the Department for Education and Skills. Published in 2003.

'Child Custody, Access and Parental Responsibility: The Search for a Just and Equitable Standard' by the University of British Columbria. Published in December 2008.

'The role of Father Involvement and Mother Involvement in Adolescent's Psychological Wellbeing' by Dr Eirini Flouri and Dr Ann Buchanan published in the British Journal of Social Work.

Please Also See the Reunite Report on Relocation, funded by the Ministry of Justice, and published in July 2009