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Moving abroad with a child: time the law changed?

Cheap flights and the effects of globalisation have meant that cases involving one parent who wants to move abroad with their children to start a new life following divorce or separation are becoming more commonplace.

However, before someone can move abroad with their child, they need permission from each person who has parental responsibility for that child. Often, the parent who is going to be left behind will oppose the move, because they believe this will affect their relationship with the child, as it usually means that they will not see him or her as often as they do currently.

Consequently, in many cases where parents can’t agree about which country their child should live in, the one who wants to relocate needs to apply to the court for permission to permanently remove the child from the jurisdiction of England and Wales.

Factors the court considers

When deciding whether to approve a move, the courts follow the guidance set out by the Court of Appeal in the landmark decision of Payne v Payne [2001],in which a New Zealand-born mother was granted permission to move from England back to her home country with her daughter, despite the British father’s opposition. The guidance set out in this case is referred to as ‘the Payne Test’.

In essence, the Payne Test means that the court must pay regard to whether the move is:

  • Motivated by a genuine desire to start a new life abroad (and not a selfish desire to exclude the other parent from the child’s life);
  • Realistic and founded on practical proposals, which have been well researched.

If it decides the application is genuine and realistic, the court must then consider:

  • The reasons behind the other parent’s opposition, in particular, whether they are genuinely concerned for the child’s future welfare, or whether they have an ulterior motive;
  • The effect that the move would have on the relationship between the parent who has been left behind and the child. The court also considers the extent to which this would be balanced by any new relationships that the child would form in the new country;
  • The impact that refusing the application would have on the parent who wants to move.

When considering the above guidance, the court’s paramount concern will always be the child’s welfare.

Changing times

Recent cases have challenged the Payne Test. However, despite their criticism of the test, the effect so far has only been to reinforce the guidance in cases where there is a sole primary carer for the child. One notable case is Re G (Leave to Remove) [2007] EWCA Civ 1497 [2008] 1 FLR 1587, where criticism was levelled by Lord Justice Thorpe, who made it clear that the Payne Test was established on the basis of a sole residence order and a sole primary carer.

The more recent case of Re K (Children) [2011] EWCA Civ 793 has changed the way in which the courts deal with applications for removal where a shared care arrangement is in place. In it, the Court of Appeal confirmed that, in cases where both parents care for a child in more or less equal shares, the overriding consideration should be what would be in the child’s best interests, determined by a number of factors known as the “welfare checklist”, as opposed to the guidance set down in the Payne Test. As a result, most parents will now find it much more difficult than they would have done previously to persuade a court to allow them to leave the country with their child.

Pressure to reform

Recent research has raised concerns about the ways in which removing a child from one country can frustrate the ongoing relationship between the child and the parent who stays behind. Investigation carried out by Reunite, the international child abduction charity, casts considerable doubt on the extent to which contact arrangements set out in court applications are actually put into effect after the move.

There has also been increased pressure for reform of the law governing international relocation. In February 2010, in the case of Re D (Children) [2010] EWCA Civ 50, Mr Justice Wall commented that the guidance given in Payne placed too much emphasis on the wishes of the parent who would like to relocate, and insufficient weight on the parent who would be left behind. He suggested that, in the right case, this point could form the basis of an appeal, so it seems the courts are keen to re-consider this issue.

Washington Declaration

On 25 March 2010, the Washington Declaration on International Family Relocation was published, following a meeting attended by over 50 judges and other family law experts to discuss the subject of international relocation. It was hoped that the declaration would spark worldwide debate on the issue, with a view to developing a uniform approach to the way in which all signatories to the Hague Convention deal with such cases. In Re H (Leave to Remove) [2010] EWCA Civ 915, Lord Justice Ward stated: “The Washington Declaration […] may prove to be not only a valuable means of harmonising the approaches of different jurisdictions to the determination of applications for permission to relocate, but ultimately also become the foundation of some reform of our domestic law.”

In June of the same year, Mr Justice Mostyn suggested in Re AR (A Child: Relocation) [2010] 2 FLR that there should be reform of the law governing international relocation and added that a review of the ideology in Payne was urgently needed.

In light of the recent decision Re K, it appears that the time for the Payne Test to be re-examined in its entirety may be coming. The move is supported by Relocation, which suggests that the guidance in Payne is too focused on the effect that a refusal to allow a move would have upon the primary carer, as opposed to the child’s welfare. Instead, they suggest that there should be a much more consistent and child-centred approach.

For further information on any of the issues raised in this article, please contact Lyons Davidson’s Advoca team.

Posted on Sep 9th, 2011 by Lyons Davidson

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