The determination of individual cases

"Few guidelines for the determination of individual cases, the facts of which are never replicated, have stood so long in our family law. " This was the proposition of Thorpe LJ in the case of Payne v Payne1 when considering the case law guidance that exists in 'relocation' cases where the custodial parent wishes to emigrate and seeks the leave of the court to do so pursuant to section 13(1)(b) of the Children Act 1989.

Following the review of the decisions in this area over the past 30 years two underlying propositions have consistently been used when deciding the outcome of such applications. The first and paramount consideration is the welfare of the child, along with a consequential question of whether a refusal of the primary carers 'reasonable' proposals for relocation were likely to impact detrimentally on the welfare of the dependant child or children.

The application for leave will be granted unless the Court considers it conflicting with the welfare of the child. The Children Act 1989 allows a person who has a residence order in his favour to take the resident child out of the UK for periods amounting to less than one month without consent or leave of the Court. This is unlimited provided each individual trip does not exceed the one-month limit. Periods beyond this, including emigration cases, require consent or leave of the Court.

The origins of the case law surrounding relocation are usually attributed to the case of Poel V Poel2. Here leave to remove was granted and seemed to revolve around the 'reasonableness' of the custodial parent's proposals. The Court emphasised that regard should be had primarily to the welfare of the child and that once a child was settled well into custody arrangements then "a Court should not lightly interfere with such reasonable way of life as is selected by the parent to whom custody has been rightly given. 3"

This approach was reiterated in the 1973 Court of Appeal case of Nash v Nash4 along with cases in the early 1980's such as Chamberlain v de la Mare5 and Lonslow v Hennig6 (formerly Lonslow) where it is possible to adduce more particularly a judicial reluctance to order against the 'reasonable' decisions and wishes of the parent with the benefit of the residence order. Therefore if the proposed move is reasonable, leave would only be refused if the interests of the children and the interests of the custodial parent are incompatible7.

The 1987 case of Belton v Belton8 thrust into the equation the relative importance of continuing contact and the effect on the relationship between the child and the parent left behind when deciding the outcome. This should not focus however to "a wholly excessive degree upon the importance at all costs of keeping contact" between the child and its other parent. It is clear that if a decision can be supported by contact with the father, then this would be an immense advantage. It is clear this should not be at the cost of diverting from the paramount issue of the welfare of the child

It was confirmed that the most important considerations were "the long term interests of the child," and that these would "revolve around establishing … a sound, secure, family unit in which the child should go forward and develop. " Of paramount importance therefore is the welfare principle and it is clear that the established guidelines revolve around how best to serve the interests of the child and even more so the likely benefit to the child of maintaining the status quo created by the residence order.

It is in the cases of the early nineties that we can see atypical decisions by the Court to deny leave to remove children from the jurisdiction, for example the cases of Re K (a minor)(Removal from Jurisdiction)9, and M v A (wardship removal from jurisdiction)10. It should be remembered however that no new, 'revolutionary' principles were used in deciding these cases, and the first and foremost reason for refusal seems to be the welfare of the child.

Both cases further cited "the continuation and development… of the relationship between the father and the child11," as important factors to consider. The reasoning in M v A went further and extended to the fact that the children were against the move and also, rather interestingly, that the Judge felt that the mother would "be able to accept the decision and act appropriately.

" This shows a combination of the previous, relatively freestanding, approaches into one coherent approach comprising of many interlinked considerations of the effect on all the parties involved in the matter. The competing factors must be weighed against each other and their relative importance to one another in order to reach a decision. It is argued that the Children Act 1989 whilst not altering the underlying factors to be considered in such applications, highlighted the all round approach to be adopted when considering welfare.

This was confirmed in the case of H v H (Residence order: leave to remove from jurisdiction)12 whereby Wall J at confirmed his agreement with Bracewell J in M v A13, that the Children Act 1989 did not "change the test but merely emphasised that the checklist is to be applied when considering welfare14. " The Court of Appeal decision in the case of Re T (removal jurisdiction)15 serves best to illustrate the type of balance that the Courts attempt to strike.

The Judge refused leave on the basis that the proposals were ill prepared, ill considered and were therefore obviously contrary to the child's best interests. The most useful guidance to emerge from the case law surrounding the 'relocation' cases can be found in the case of Payne v Payne16. This case firmly entrenched the principle that the child's welfare is always paramount in this area of Family law and that all other considerations, including contact with the absent parent, whilst of importance were not overriding provided that the welfare of the child was protected.

The recent European case of Sahin v Germany17 suggested that the welfare of the child must be balanced with the rights of the parent. This suggestion however has yet to be extended to cases involving s. 13 and relocation. The approach would include scrutinising the proposals, considering the effect of refusing and balancing the importance to be attached to contact. Primarily, the reasonable proposals of the parent with the residence order will carry great weight.

Essentially therefore the Courts approach since Poel has largely remained unchanged and whilst there are a number of competing considerations, the welfare of the child, using the factors and principles set out at Section 1 of the Children Act 1989, will ultimately dictate the Courts decision. Bibliography Textbooks Family Law – Principles, Policy Hayes, Williams Butterworths 1999 And Practice 2nd Edition Principles of Family Law Cretney, Masson & Sweet & Maxwell Bailey-Harris 7th Edition A Practical Guide to Family Blomfield & Brooks Family Law Series