Leave to Remove Case Law Summary

The Custody Minefield Factsheets – Smartphone Series (optimised for smartphone users). Copyright Michael Robinson 2010, 2011. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.

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Re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146 - <Back to Top>

Permission to remove the children from the jurisdiction out to be sought where the father has an application pending before the court.

Payne v Payne [2001] EWCA Civ 166 - download - <Back to Top>

The impact on the primary carer of the refusal of their application to emigrate with the children was given 'great weight' in the belief that refusal would cause the parent such psychological harm as to impact on their ability to care for the children. No evidence is provided (previously or subsequently to support that belief). Payne v Payne provides guidance for judiciary to consider in cases where there is a primary carer. Where care is shared between the parents, the courts should instead refer to the guidance set out in Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330.

The applicant parent must satisfy two hurdles before the rest of their application is considered, that their plans are thought through and their motives are reasonable.

Until July 2011, the courts were considered ‘bound’ to follow the guidance within Payne v Payne, however in the case Re K (Children) [2011] EWCA Civ 793, the Court of Appeal ruled that the only point of law from Payne was that the children’s best interests must be the court’s paramount consideration..

Re T (A Child) [2001] (not reported) - <Back to Top>

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 - <Back to Top>

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.

Re F (Children) [2003] EWCA Civ 592 - download - <Back to Top>

A shared residence order may be made, even when parents live considerable distance apart (in this case, England and Scotland) so long as the children divide their time between two homes (this does not mean the equal division of time). Parents living in separate countries does not prevent the granting of a shared residence order.

Re B (Removal from Jurisdiction); Re S (Removal from Jurisdiction)[2003] EWCA Civ 1149; [2003] 2 FLR 1043 - <Back to Top>

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.

Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330 - download - <Back to Top>

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)

R v R (Leave to Remove) [2004] EWHC 2572 (Fam) - open - <Back to Top>

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 G (Children) 2005 FLR 166 - <Back to Top>

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 - <Back to Top>

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.

Re A (Temporary Removal from Jurisdiction) [2005] Fam Law 215 - <Back to Top>

Where removal abroad is intended to be for a temporary period, less regard needs to be paid to the guidance in Payne v Payne.

Re D (Leave to Remove: Shared Residence) EWHC (Fam) (2006) - <Back to Top>

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.

Re F v H (Children) [2007] EWCA Civ 692 - <Back to Top>

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.

G (Children) [2007] EWCA Civ 1497 - open - <Back to Top>

Thorpe LJ rejects counsel's arguments that with the growth in co-parenting, the guidance in Payne v Payne is out-of-date and requires review, and does not accept that the lower courts misapply the guidance within Payne (granting great weight to the 'distress argument' relating to the distress caused to the applicant should their application fail).

M v H [2008] EWCA 324 (Fam) - open - <Back to Top>

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

W (Children) [2009] EWCA Civ 160 - download - <Back to Top>

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.

P-J (Children) [2009] EWCA Civ 588 - download - <Back to Top>

Consent for leave to remove had been given by the Spanish father, but withdrawn prior to the mother’s relocation with the children to the UK. The court returned the children to Spain. Consent must be clear, unequivocable and provable, and must not be withdrawn before the relocation takes place.

D (Children) [2010] EWCA Civ 50 - download - <Back to Top>

Lord Justice Wall accepted there to be a ‘compelling’ argument for a review of Payne v Payne in the right case.

AR (A Child: Relocation) [2010] EWHC 1346 (Fam) - download - <Back to Top>

Mother's appeal against denial of leave to remove was rejected. Mostyn J questions the guidance in Payne v Payne, calls for the urgent review of that guidance in the court of appeal. Essential reading in LTR case preparation.

H (A Child) [2010] EWCA Civ 915 - open - <Back to Top>

Permission to appeal granted by the trial judge (with a seeming intention that Payne v Payne might be reviewed). Father's appeal was rejected by the Court of Appeal. Reference was made to D (Children) and AR (A Child: Relocation) in the judgment, but the grounds for a review not fully understood (as presented to and commented on by Wall LJ in D (Children))

R (A Child) 2010 EWCA Civ 1137 - open - <Back to Top>

Permission to appeal refused. Relocation to Australia. Judge was acting within discretion, in that while CAFCASS reports are often ordered, a welfare report is not a necessity. Child’s separation from older half-siblings was mitigated by half siblings being older and likely to leave home in the nearer future themselves. Child at age 5 was too young to express wishes and feelings of any significance. That the trial judge did not make an order for contact was not an appealable ground, as once the child leaves the country, the jurisdiction of the courts of England and Wales ends. Payne is binding on the courts, but described now as a ‘controversial’ judgment.

C v D [2011] EWHC 335 (Fam) – download - <Back to Top>

In this case, heard in the High Court by Mrs Justice Theis DBE, it is worth noting her judgment based on considerations set out in the Welfare Checklist (section 1(3) of The Children Act 1989) and her finding that relocation was not in the children's best interests, despite accepting that her decision would be devastating to the mother who wished to emigrate with the children.

"65. Having carefully considered all the evidence and the welfare checklist I have come to the clear conclusion that the welfare of each of these children is met by the mother's application being refused. I recognise that this will be devastating for the mother but I have come to this conclusion primarily based on the evidence that the children are thriving under the regime the parents have devised in this jurisdiction and the adverse impact on their time and relationship with their father if they did move to south USA. For the reasons set out above I do not believe it can be effectively replicated if the children move to south USA and that any different regime will not meet the children's needs. With the welfare of these children as the lodestar by which I am guided I am satisfied that the move to south USA would not meet the welfare needs of these children, however disappointing that decision will be for the mother."

K (Children) [2011] EWCA Civ 793 – download - <Back to Top>

The only point of law or legal principle to be extracted from Payne v. Payne is the paramountcy principle. There is "no doubt at all that the guidance in Payne is posited on the premise that the applicant is the primary carer". Where care is shared, the courts should make reference to the guidance within Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330. Leave to remove cases should be decided upon the facts of the case, and the welfare of the child and statutory considerations as set out in s.1(3) of the Welfare Checklist within the Children Act 1989 must be the court’s paramount consideration.

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