Considerations When Children are Removed from the Jurisdiction of the UK Courts
One of the most emotionally distressing and complicated issues that family lawyers have to deal with is the question of the removal of children from the jurisdiction of the UK Courts because one parent wishes to emigrate, or simply to return to their home country.
In 2001 in the Court of Appeal, in the case of Payne V Payne, Dame Butler-Sloss set out guidelines which, she stated “should be at the forefront of the mind of a Judge trying one of these difficult cases”.
In a nutshell, the criteria were:-
- The welfare of the child is always paramount
- There is no presumption created by the Children Act in favour of the applicant parent
- The reasonable proposals of the parent who holds a Residence Order, and who wishes to live abroad, carry great weight.
- The proposals have to be scrutinised with care, the Court needing to be satisfied, there is a genuine motivation for the move, and that it is not being done with the intention of terminating contact between the child and the parent who remains in the United Kingdom.
- The effect upon the applicant of a refusal to grant leave is very important.
The effect upon the child of the denial of contact with the UK based parent, and in some cases his family, is very important.
In 2004, in the case of Re Y when refusing an application made by an American mother to return herself and the child to America in order that she and her child could be close to her family, the Court of Appeal stated that they had considered the case of Payne v Payne but commented that the Welfare Checklist must always be considered, and in that particular case, the likely effect of a change in circumstances for the child was deemed to be crucial. The Court of Appeal has, however, now made it entirely clear that the only principle to be extracted from the case of Payne v Payne is that the welfare of the child is paramount.
The Checklist provided by the case of Payne v Payne, so doggedly adhered to to date, is stated as now being there simply for guidance. The case of MK v CK, decided in 2011, states that the proper approach in every relocation case is to apply the Welfare Checklist as set out in Section 1(3) of the Children Act 1989, and which have regard to factors such as the ascertainable wishes and feelings of the child (considered in the light of his age and understanding), his physical, emotional and educational needs, the likely effect on him of any change in circumstances, his age, sex, background and any characteristics of his which the Court considers relevant, any harm which he has suffered or is at risk of suffering, how capable each of his parents, or for that matter any other person in relation to whom the Court considers the question to be relevant, is of meeting his needs, and the range of powers available to the Court under the Children Act in the proceedings in question.
The facts of MK v CK were that the mother was Canadian, the father Polish, but grew up in Canada. The father moved to England in 1993, the mother in 2003.
They married in July of 2004 and had two daughters born in 2006 and 2009, divorce proceedings being filed in July of 2010.
Both parents were bankers who did not work full time, and there was a Shared Residence Order made on 23rd August 2010, and which provided for the children to spend 5 nights with the father and 9 nights with the mother in every fortnight – and despite the fact that they were more nights with the mother, there were more daylight hours spent in the company of the father.
At first instance the Court granted leave to remove despite the recommendation contained in the CAFCASS report that the children should remain in the United Kingdom, the Judge focussing on the case of Payne v Payne, and only addressing the mother’s case when delivering his judgment.
In the Court of Appeal, Lord Justice Thorpe stated that the only principle to be extracted from the case of Payne v Payne was the Paramountcy Principle, i.e. that the welfare of the child was always paramount. He drew a distinction between those cases which could be seen as a “shared care” case, and those where there was clearly a “primary carer”. In the case in hand, there was a shared care arrangement, and accordingly the judge felt that the case of Re Y should have been applied as opposed to the case of Payne v Payne.
The distinction between the “primary carer” and “shared carer” was not, however, supported by the other members of the Court of Appeal deciding the case, and in fact Lord Justice Black, who ran through almost 40 years’ worth of case law in this area, stated that it was quite clear that the principle adopted throughout the various case decisions was that the welfare of the child is of course a paramount consideration, stating “everything that is considered by the Court in reaching its determination is put into the balance with a view to measuring its impact on the child.”
Until now, it had been understood, or at least argued, that the decision in Payne v Payne was the authoritative decision, and that the principles enunciated therein were paramount. MK v CK has, however, made it absolutely clear that the welfare of the child overrides all other considerations, and that the distress of the applicant parent is simply one factor to be considered and does not override any other factors.
The proper approach in every relocation case is therefore to apply the Welfare Checklist, and to remember that the greater part in child’s life the non-applicant parent plays, the greater damage is potentially caused by the child being relocated.
Like so many cases in family law, the facts presented in any individual case are unique, and all of those facts need to be considered in the balance against the all important principle of the child’s welfare.
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