June 2010 London
Divorce solicitors and family law practitioners welcomed renewed calls for a review of the law surrounding child relocation after family breakdown. In February, Lord Justice Wall had called for a review of Payne v Payne [2001], this being the case by which applications for removal of a child from jurisdiction are usually measured against, and, in the summer, further calls were made for family law review.
Lord Justice Wall had been hearing an application for permission to appeal a leave to remove order. He refused the father's permission to appeal, but said in his judgement, "There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left-behind parent."
Family law review of Payne v Payne
At the time of writing, the approach of the courts upon reviewing an application to remove a child from jurisdiction would be to allow the relocation, unless there was compelling reason not to, so long as the request to emigrate made by the person with the residence order was reasonable.
In Payne v Payne [2001] the Court of Appeal had to consider whether the family law court's approach to dealing with such an application under s.13 of the Children Act 1989 would breach the European Convention of Human Rights.
The mother in the case had been granted a residence order, but it was with prohibition of the removal of the child from jurisdiction. The father later applied for a residence order and the mother then applied to the court for permission to remove the child from the UK permanently.
The application for removal was granted. The father appealed, arguing that in cases of application for emigration of children, the general principles established by authority were incompatible with the Act of 1989 and the European Convention. He asserted that the family law court's effect was to presume in favour of the applicant parent, thereby requiring the objecting parent to make justification of his or her position.
It was, as always, the court's duty to consider the applicant's proposal with care and to contemplate the effect of a refusal of permission on the applicant parentand the child. Correspondingly, consideration had to be given to the effect upon the child of the prospective denial of contact with the challenging parent and their family members.
The appeal court determined that the judge's initial ruling should stand as he had properly measured all considerations and the father's appeal was rejected.
Further calls for family law reform
In June 2010, Mr Justice Mostyn called for an urgent review of Payne v Payne by the Supreme Court after being presented with a case where a mother wished to remove her child to France. The High Court Judge refused the application, saying that the leading authorities on such cases, Poel v Poel[1970] and Payne, usually mean that such applications are allowed unless it is patently evident that the application is irrational, absurd or malevolent.
In his judgement Mostyn J criticised Poel and Payne for "rewarding selfishness and uncontrolled emotions". The Poel judgement, although still used as an authoritative ruling, has been criticised for being from an era when social attitudes were very different towards shared parenting and so should not necessarily be reflected in society today.
In March 2010, the Washington Declaration was agreed with the support of the Hague Conference as a way to aid the cross-border unification of family law decisions involving international child relocation. Mr Justice Mostyn said that the declaration supplied a more balanced and neutral approach to relocation applications as "it requires the court… to take into account the impact on both the child and the left-behind parent of the disruption of the periodicity and quantum of the prevailing contact arrangement".
Healys family law solicitors and advice on child relocation
Child relocation on divorce or after family breakdown is a complex area of family law and any dispute almost always requires the services of an experienced family law lawyer to ensure the best outcome.
Healys is a full service legal firm and our family law team has the benefit of being able to draw upon the considerable skills and expertise of our colleagues in other departments on all issues arising out of family separation. This ensures that we can provide you with full and comprehensive advice from either our London or Brighton offices.
If you wish to talk confidentially to a family law solicitor regarding child relocation please call direct to Naim Qureshi, in our London office, on 020 7822 4165 or e-mail naim.qureshi@healys.com
In our Brighton office you can speak directly to Catherine Taylor on 01273 669 124 or e-mail on catherine.taylor@healys.com
