Are you wishing to take your children to live abroad? Is your ex partner? What if this leaves the remaining parent with little or no contact?
In a recent case in Hastings, a family court judge refused a mother’s application to emigrate to Australia with her three year old son as he did not believe the mother would make the necessary effort to ensure the child continued to see his father in England. This was against the backdrop of the mother having allegedly made it extremely difficult for the father to see their son in the UK.
Until 2011, the leading case concerning applications permanently to remove children from the UK was Payne v Payne  EWCA Civ 166, in which the Court of Appeal agreed with the county court’s decision to grant permission to a divorced mother to move back to New Zealand with her daughter, against the wishes of the young girl’s father.
However, Payne v Payne was seriously criticised for placing too much emphasis on the wishes and feelings of a relocating parent when assessing a child’s best interests and giving insufficient consideration to the harm done to the relationship between the children and the parent left behind.
Dame Elizabeth Butler-Sloss’s controversial conclusion in Payne v Payne was that:
“The mother’s reasons for her desire to return to New Zealand were appropriate and entirely understandable. Her situation in England was not a happy one. The judge found that the effect of her being forced to stay in England would be devastating. He found that her unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to the child. The father who has a close relationship with his daughter would be able to afford to visit her or have her visit him two or three times a year which mitigated the loss to the child and to him”.
Not surprisingly, many take the view that this is incorrect and that children’s interests are better served if they have two parents to raise them.
The more recent judgement of K (Children)  EWCA Civ 793 was seen by many as a step in the right direction. The case concerned an appeal by a father against an Order permitting his former wife to relocate to Canada with their two children where the mother and father had shared the burden of caring for the children in “more or less equal proportions”. The father’s appeal was allowed and their Lordships agreed that the only principle to come from Payne v Payne was that the welfare of the child is paramount. The rest is guidance only, to be applied or distinguished depending on the circumstances.
The judgement showed us that in cases where the parent opposing a move abroad has significant contact with their children, the parent proposing to relocate will have an uphill struggle in persuading the court that the relocation is in the best interests of the children.
The decision of the court in Hastings last month goes further still and shows that a parent proposing to relocate may be unsuccessful even where the parent opposing the move has very little contact with their children.
The judge confirmed that the principles to be applied in cases concerning applications to permanently remove children from the UK are set out in the case of Re TC and JC (Children: Relocation)  EWHC 292 (Fam) at paragraph 11 and said that in applying these principles he “found this to be a very difficult and finely balanced decision”.
If court proceedings involving the proposed relocation of children abroad are hard for those adjudicating them, they are inevitably even harder for the parents and we strongly recommend that specialist legal advice is obtained at an early stage so that proceedings can be avoided if at all possible.
If you require advice on this difficult and emotive issue, please contact one of our specialist family lawyers.
Image by Jimmy Harris under a Creative Commons licence