We are all aware that people are now able to travel much more than previously so that not only do we holiday abroad more than in the past but we are able to move around the world more freely than before and so people are more inclined to travel and settle abroad than in the past. Everyone is more mobile and are more likely to settle abroad to advance their careers or to settle with partners they have met who wish to go abroad or return home following completion of studies or other activities here.
Most of us welcome the development of travel since it broadens our horizons and breaks down insular and possibly negative attitudes but it does have unintended consequences. Differences in cultures and attitudes are exposed and sometimes families are torn apart because one of a child’s parents wishes to go abroad and the other does not but rather wishes to stay here and educate and raise the child here in familiar surroundings and with the support of both parents.
In the vast majority of cases, but not all, parents who face this dilemma have separated before the decision to move abroad is taken and frequently the decision to relocate arises following one of the estranged parents meeting a new partner with whom they wish to live in a new country. In the majority of cases the parent with the primary care of the child is the mother and so it is mostly women who seek the Court’s leave to go abroad permanently with a child since even a parent with a Residence Order can only remove a child for 28 days without the Court’s permission.
The Children Act of 1989 was introduced primarily to promote the welfare of children. The parents are of course extremely important in a child’s development but where the interest of a child and a parent clash it is the child’s welfare which is paramount. If, as is mostly the case, a mother who applies to move abroad with a child would be so unhappy if refused permission to leave that this would impact on the child then frequently permission would be granted. It is of course, essential, for the mother to show she is the primary carer of the child.
Of course, the Court would need to be satisfied that the country where the child is to be taken was safe and where the Courts there would recognise and enforce any conditions that had been made in permitting the child to leave for example there might have been a requirement that the child would return home on a regular basis and would be made available for contact to the father if he chose to visit the child in the child’s new country. Often, the Court abroad would be asked to make a ‘mirror order’ that is an order which reflects the terms of the order made here. It is also the case that often a sum of money is to be made available to the father to finance either his or the child’s travel which can be forfeited if the conditions laid down by the Court permitting the removal of the child are not followed. The leading case concerning the removal of children from the jurisdiction is Payne –v- Payne.
In such cases the mother seeking leave to remove the child must be the primary carer having the day to day responsibility for the child and so more likely to be unhappy if leave was refused because she could not provide the child with all of the love and care she would be able to do if permitted to travel with the child. Obviously, the father who lost the opportunity of watching the child develop was frequently devastated by the decision to permit the child to leave more so if he had much greater involvement in the care of the child as would be the case where there was for example a Joint Residence Order which gave both parents equal responsibility for the child’s care. Such orders are now more common than previously and where such a situation exists the Court might, as they did in the recent case of MK v CK (2011) EWCA Civ 793, refuse leave to the mother to leave if the father can show he had responsibility for the practical arrangements for the sharing of the burden of the care between two equally committed carers that is both parents had an equal commitment to the care of the child.
This does not mean, however, that such applications by mothers which fell within the rule laid down by Payne –v- Payne will fail. It does mean, however, that in certain circumstances other considerations will be taken into account especially where there is a Joint Residence Order in being.
If you want to know more about this subject please contact either Mary McEvoy or John Walsh at our Luton/Harpenden Office or Beth Woodward at our Milton Keynes Office or Pui Au-Yeung at our Northampton Office.
