Parent residence orders and relocation

first_imgOne of the most difficult decisions a family judge can be called on to make is whether to grant permission to a parent with a residence order to relocate outside the jurisdiction of England and Wales. Cheap air travel, emails, mobile phones, Facebook and Skype aside, a relocation to the other side of the world will, inevitably, have a dramatic impact on a child’s contact with the ‘left-behind’ parent. In Payne v Payne [2001] EWCA Civ 166, Lord Justice Thorpe suggested the following ‘discipline’: a) Pose the question: is the mother’s application genuine, in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask, is the mother’s application realistic, by which I mean founded on practical proposals both well researched and well investigated? If the application fails either of these tests, refusal will inevitably follow; b) If, however, the application passes these tests, then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland? c) What would be the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal? d) The outcome of the second and third appraisals must be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate. Put another way, as summarised by Dame Elizabeth Butler-Sloss, the then president of the Family Division: a) The welfare of the child is always paramount; b) There is no presumption created in favour of the applicant parent; c) The reasonable proposals of the parent with a residence order wishing to live abroad will carry great weight; 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 on the applicant parent and the new family of the child of a refusal of leave is very important; f) The effect on 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. The court in Payne was alive to the importance that has been consistently attached to the emotional and psychological well-being of the primary carer. It was also aware of the danger that, if the reasonable proposals of the primary carer were elevated into a legal presumption, then there would be an obvious risk of the breach of the non-resident’s parent’s rights not only under article 8 of the Human Rights Act, but also under article 6. In spite of that recognition, Payne has, nevertheless, attracted considerable criticism for that reason. For proponents of the alternative Washington Declaration, the problem of attributing too much weight to the psychological impact of refusal of leave on the thwarted primary carer is that, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions (See Mr Justice Mostyn in Re AR (A Child: Relocation) [2010] EWHC 1346). In Re D (Leave to Remove: Appeal) [2010] EWCA Civ 50 Lord Justice Wall (as he then was) said: ‘There is a perfectly respectable argument for the proposition that [Payne] places too great an emphasis on the wishes and feelings of the relocating parent and ignores or relegates the harm done to children by a permanent breach of the relationship that children had with the parent left behind which would, in the right case, constitute a compelling reason for an appeal [to the Supreme Court] to be heard.’ (Re D was not such a case, however.) There was some sympathy for those sentiments expressed in Re H (Leave to Remove) [2010] EWCA Civ 915. However, a cautionary note was sounded. If the present law did, indeed, place excessive weight on the negative impact of a refusal to permit relocation on the primary carer, consideration might need to be given to whether the Washington Declaration, as presently drafted, by contrast placed insufficient weight on it. District Judge Julie Exton sits at Bristol County Court and is the chairwoman of the Family Sub-Committee of the Association of Her Majesty’s District Judges. Re W [2011] EWCA Civ 345 concerned an Australian national who wished to return to Australia with two children, aged 12 and eight. At the time of the mother’s application, the father had very little contact with the children and did not have parental responsibility. During the course of the proceedings, however, the father was granted parental responsibility, and visiting and staying contact. Judge Tyzack QC found that the mother would be devastated if her application were refused. Her relocation plans had not been criticised. Her motivation was unimpeachable. She proposed annual visiting contact for a month in addition to contact through Skype, telephone, and email and letter. Although they loved their father and enjoyed contact with him, the children themselves wished to go to Australia. The CAFCASS officer, who filed three reports, was of the view throughout that the mother should be allowed to go. Nevertheless, Judge Tyzack refused permission. The Court of Appeal was clear that, in carrying out the necessary balancing exercise, he had got it plainly wrong and it was appropriate for the court to interfere. The mother’s plans were clearly in the best interests of the children. The scales weighed heavily in her favour, particularly the effect on the children if the application were refused, and she should be allowed to relocate. Even weighing the father’s objection and the loss of his newly gained relationship with the children, the balance still weighed heavily in favour of relocation. When considering the best interests of the children, the best interests of the primary carer was an important consideration and clearly outweighed the newly acquired relationship with the father. Furthermore, there was no evidence that the father’s relationship with the children would be terminated. More importantly perhaps, in the context of the current debate, Lord Justice Wall conceded that too much prominence had been accorded to what he said in Re D; and he went so far as to retract the word ‘ignores’ from the paragraph quoted above.last_img read more