Leave to Remove
From FamilyLawWiki
REMOVAL FROM THE JURISDICTION / LEAVE TO REMOVE
Removal from the jurisdiction / Leave to remove is the area in family that is more firmly rooted in 1970s mentality than anything else. Two precedents now define this area of family law. Two appeal court judges have shaped the criteria according to which a person with parental responsibility is granted leave to remove his/her children from this jurisdiction: Butler-Sloss LJ, the former president of the Family Division, and Thorpe LJ, now responsible for international aspects in the Family Division.
The 1970s case that set the scene was:
Poel v Poel [1970] 1 WLR 1469, sub nom P (LM) (Otherwise E) v P (GE) [1970] 3 All ER 659, CA
The post-Human Rights Act [HRA] case references are:
1. Payne v Payne [2001] EWCA Civ 166, [2001] 2 WLR 1826, [2001] 1 FLR 1052, [2001] UKHRR 484, CA
2. RE B (REMOVAL FROM JURISDICTION); RE S (REMOVAL FROM JURISDICTION) [2003] EWCA Civ 114, CA
A recent case, RE G (REMOVAL FROM JURISDICTION) [2005] EWCA Civ 170, CA, is a perfect illustration of how far the Court of Appeal can drive the "distress argument", i.e., the argument that seems so innocuously summarised as the third criterion in Thorpe LJ's list (see link above): "(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?" Re G must be savoured in full if one wants to appreciate the extent to which Poel v Poel is now clad in iron.
- I'm Leaving On a Jet Plane: Can I take the children with me? [1]
- Internal Relocation. Critical summary of the law from www.thecustodyminefield.com: [2]
- Re AR (A Child: Relocation) [2010] EWHC 1346 rejected a leave to remove to France
A Change in the wind - 2010/2011
Starting in 2010 cracks started to appear in the advice to courts given by Payne V Payne. This was widely interpretted as saying: if the effect on primary carer (generally mother) being forced to stay in England would be devastating then she should be allowed to move as otherwise that could well be damaging to the child. The key seems to be that if there is shared care (something not defined, but probably more than one weekend a fortnight) then there is no primary carer and so the other items in Payne V Payne (see para 85 in Payne V Payne). Note also the Welfare checklist, S1.3 of the 1989 children act.
One important case is K (Children) [2011] EWCA Civ 793, but more change seems imminent. The site http://www.relocationcampaign.co.uk/ seems to be a good source of updates. More notes are expected shortly and will be added as & when received.
Note that these changes apply specifically about leave to remove from the UK and are not about movement within the UK, however some of the same arguments may be used - but may not be so strong.
