Leave to remove cases and the paramountcy of the welfare principle

It is a criminal offence to remove a child from the jurisdiction of England and Wales without the written consent of every person who has parental responsibility for a child. This means that if the parents of a child split up, and one of them wishes to relocate overseas with the child, they must either obtain the consent of the other parent or apply for permission from the court.

A recent Court of Appeal case, F (A Child) (International Relocation Cases) [2015] changed the established criteria that the court will consider when determining such an application. This case concerned an English father’s appeal of a decision by a lower court granting the mother (who was German) permission to relocate to Germany with the parties’ 12 year old daughter.

Previously, the leading authority in such cases was a 2001 case, Payne v Payne. In Payne, the Court of Appeal laid down a four-point guide, as follows:-

1. Is the application genuine or motivated by a desire to exclude the other parent from the child’s life?

2. Is the proposal practical both financially and in terms of educational and health provision for the child?

3. What would be the impact on the parent if their application for leave to remove was refused?

4. What would be the impact on the other parents and their child’s relationship with them if the application for leave to remove was granted?”

This test looked at the motivation of the parent making the application and the impact on that parent if the application was refused. It also considered the impact of the relationship between the ‘staying behind’ parent and the child if the application was granted.

The court moved away from Payne in a 2011 case, MK v CK, finding that the only principle to be applied when determining an application to remove a child permanently from the jurisdiction was that the welfare of the child was paramount and overbore all other considerations. The court held that the Payne factors should be applied only as guidance in determining the welfare paramountcy.

Although MK v CK represented a clear departure from Payne, Payne remained good law as the decision in MK v CK was made by a lower court. However, in F (A Child) [2015], the Court of Appeal affirmed the approach in MK v CK, holding that instead of applying specific factors, the court should carry out a “global, holistic evaluation” of the circumstances surrounding the application.

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