Does the appeal court decision In the Matter of F change the law in the international relocation of children?
Cases involving separated parents, one of whom wishes to leave England and Wales with their child, are some of the most difficult for family solicitors. The stakes are high for both parents and of course the child, and the decision of the court is binary. There really is no middle ground in these types of disputes.
Over 10 years ago our courts decided the matter of Payne v Payne, and the majority of us specialising in this area thought there had been a significant change in the approach of our courts to applications made by one parent (the mother in that case) for leave to remove the child from the jurisdiction of England and Wales. In Payne the court granted the mother’s application to leave with the child and the court referred to the “greater weight” that should be given to the wishes of the parent who was the “primary carer”. The court said it was especially so in instances where the primary carer was wanting to return to their native country. The court spent time looking at the effect that a refusal of the mother’s application would have on her state of mind, and by implication, on the child’s welfare.
Some thought the court in Payne had elevated the guidance it had given, to the importance of introducing a new principle, and that in each case the following three questions had to be asked:
- Is the mother’s application genuine and based on practical proposals that have been well researched?
- Is the father’s opposition based on genuine concern for the child and what effect would the move have on his relationship with his child and would this be offset by the extension of the child’s relationship with the mother’s family?
- What would the impact be on the mother if her application be refused?
Since Payne another notable case was heard in 2011. In K v K it was clear that the main principle to be applied was and is the welfare of the child. The welfare of the child is paramount and overrides any other consideration/s. These other considerations would include issues such as; whether there is a primary carer” or a “shared care” arrangement.
The court made it clear In the Matter of F that even where there is a situation in which one parent can be described as the primary carer, this does not mean there is a presumption that the application of that parent will be granted. The court said it was not going to be concerned with whether one parent had sought a shared care child arrangements order “in his or her armoury for deployment” in a relocation application.
The paramount consideration by the court in every single case should be the welfare of the child with specific reference to the Welfare Checklist, as follows:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding);
- His/her physical emotional and educational needs;
- The likely effect on him/her of any change in his/her circumstances;
- His/her age, sex, background and any characteristics of his/hers that the court considers relevant;
- Any harm including harm by witnessing domestic violence which he/she has suffered or is at risk of suffering;
- How capable each of his/her parents and any other person in relation to whom the court considers the question to be relevant is of meeting his or her needs; and
- The range of powers available to the court under the legislation.
The legal arguments are will centre around what weight should be given to each of the above factors in any particular case.
Louise Barretto prepared this article on 10 August 2015. Should you wish to discuss any issues arising from the above with Louise she can be emailed on: firstname.lastname@example.org