Leave to removeBlog Archive

Child's welfare paramount as mother granted leave to remove

22 September 2015
Mother succeeds in gaining leave to remove her child to France in a case which underlines the importance of the paramountcy of the child's welfare and application of the Payne guidance.

A case heard in the High Court, where a mother had applied for leave to remove her child to France against the wishes of the father, highlights the fine balance judges face in reaching a decision in such cases.

In her judgement (Re C (A Child) [2015] EWFC 29), Mrs Justice Theis stated that such a case "is inherently difficult as it involves a decision for which there is no halfway house, either permission is granted and the child moves to another jurisdiction which will invariably change the relationship with the left behind parent, or if refused may result in the parent who made the application feeling resentful that their move has been stopped in its tracks... this is a finely balanced decision."

This particular case concerned a young girl, C, aged 3. Her French mother (then 27) and Italian father (then 29) met in the UK, started living together and decided to have a baby.

Sadly the couple's relationship broke down only about 16 months after their daughter was born. For a period they lived separately but under the same roof for the sake of their child but that did not work and the mother and C moved out.

After returning from a visit to France, where most of the mother's family and a close friend of the mother lived, the mother decided that she wanted to move back there permanently with the child. The father opposed the application, concerned about the reduction in the time that C would be able to spend with him and the negative effect of this on their relationship. The parents attended mediation but were unable to agree.

The mother then issued an application for leave to remove C permanently from the jurisdiction and the father issued a cross-application seeking a shared child care arrangement.

A Cafcass officer provided a detailed carefully considered report, recommending that the mother should be given permission to move to France with C.

In her decision, the judge referred to the paramountcy of C's welfare. Adopting the approach of Lady Justice Black in the important Court of Appeal case of K v K [2011], she commented that attempting to define cases on the basis of whether they are "primary carer" or "shared care" cases is "probably not helpful" and referred to the "guidance" in Payne v Payne [2001] as "of value in identifying important factors to be taken into account and the weight to be attached to them but it does not dictate the outcome of a case."

The judge held that it would be in C's best interests to allow the mother's application for relocation to France. C would be closer to her wider maternal family and her mother would feel more secure and less isolated there. Although the move would have an impact on the father and his relationship with C, both parents were resourceful and would be able to ensure C's relationship with her father remained strong.

Maeve O'Higgins Family Law Partner, Burlingtons Legal | Email: maeve.ohiggins@burlingtonslegal.com Tel: +44 (0) 207 529 5420

This blog is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.