Father given right to appeal against leave to remove order
25 September 2015
A father's appeal against an order giving the mother leave to remove their 12-year-old daughter to Germany was allowed in a very important Court of Appeal decision, in August 2015.
The appeal in Re F (A Child) (International Relocation Cases)  EWCA Civ 882 concerned the 12-year-old daughter (L) of divorced parents. L's mother was a German national, who had come to England to learn English and work as an au pair. The couple began a relationship about 10 years later, started living together and then got married. The marriage broke down soon afterwards and the couple had lived under the same roof and then divorced. The father was English.
After financial remedy proceedings were concluded between the parents, the mother made an application for leave to relocate permanently with the daughter to Germany. The trial judge granted her application for leave to remove.
The issue on appeal was whether the judge had allowed herself to be deflected from a proper welfare analysis in order to do justice between the parents and had allowed herself instead to be constrained by the narrower guidance given by the court in Payne. The Court of Appeal in deciding to set aside the relocation order decided that she had. In particular, the judge had failed to consider "the erosion in the quality of the relationship between father and daughter" if she moved to Germany, and had failed to carry out "an evaluation of the harm" to the child of permission being refused as against "the harm that would result from separation from her father should she move".
In giving judgement, the Court of Appeal distanced itself from out of date "gender based assumptions" about parental roles in relation to the care and upbringing of children and the absence of the child's participation in the decision-making process. The Court allowed the appeal, set aside the relocation and child arrangements orders made by the judge and directed a rehearing of the application before a different judge.
The decision is good news for the left behind parent - nearly always the father. Fathers are now more likely to be successful in opposing relocation cases than they used to be. However the emphasis on the paramountcy of the child's welfare and further distancing by the court from the Payne guidance will make it harder to predict the outcome of relocation cases, which are frequently referred to by judges as being "finely balanced". It will be even harder to settle such cases and even more likely that they will have to go all the way to a Final Hearing, for a judge to determine the outcome.
This underlines the importance of parents obtaining skilled legal advice in what is a very specialised area of the law, with many pitfalls for the unwary. Careful preparation of a parent's case for or against relocation by his or her lawyers and the parent following legal advice about how to conduct him or herself up to and at the Final Hearing is crucial to a good outcome, when the decision can often go either way.
Maeve O'Higgins Family Law Partner, Burlingtons Legal |
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