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Leave to remove - analysis of authorities

Letter from David C Hickman, published in Family Law - May 2000
[2000] Fam Law p 375-376

(Reproduced with permission of the author and Family Law)

Dear Editors,

A review of the cases helpfully summarised by Simon Webster in 'Analysis of Leave to Remove Authorities' [2000] Fam Law 128, clearly demonstrates how contact between child(ren) and the non-resident parent can be severely curtailed when an application permanently to remove a child from the jurisdiction is granted by the courts. When the resident parent wishes to emigrate to another country or continent, contact is often reduced to one or two visits annually, which is taken to be in the child's best interests. Yet in many of the cases listed, the child was enjoying regular, frequent contact with both parents prior to the application being granted.

Most published research conducted on the effects of divorce on children supports the view that the children who suffer least are those who are able to maintain a close and continuous relationship with both parents. How can it be said that taking a child to another part of the world is in the child's best interests since, in all probability, contact with the non-resident parent will be severely curtailed at best? After all, s 1(1) of the Children Act 1989 states clearly that the welfare of the child is paramount. Indeed, Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that 'everyone has the right to respect for his family life'. This is a right, including both child(ren) and the non-resident parent, and will be incorporated into UK law on 2 October 2000.

Often the judge states at the outset that it is the child's best interests that he is concerned with during the hearing and that he is anxious to ensure that generous contact takes place if leave to remove is granted. This statement is then taken up again in the judgment, particularly when the applicant, usually the mother, states that she is committed to generous contact in the first place, which she often does.

But then the judges realise the problems of trying to make this happen, at the latest when looking at the specifics and when they have to confront the difficulties of arranging regular contact with a child who will be living abroad. These difficulties arise even before disruption and the costs involved are mentioned. Hence the child's contact with the non-residential parent can end up as one or two visits per year, albeit with the best intentions.

The problem is compounded by the following points.

(1) The interpretation of the question posed in Re H (Application to Remove from Jurisdiction) [1998] 1 FLR 848: 'Is the proposed move a reasonable one from the point of view of the adults involved?'. In my letter at [1999] Fam Law 123, I suggested that you might get a completely different answer to this question if it was asked from the perspective of the child involved. A move abroad (from the child's point of view) may be unreasonable since it will inevitably affect his relationship with the parent left behind to a substantial degree. If you start the line of reasoning with the presumption that a child needs a close and continuous relationship with both parents, and ask how and where can this best happen, either by staying in the UK or going abroad to live in another country, then many of these applications to remove would fail to get off first base.

(2) The second issue is the courts' reluctance to consider shared parenting as the norm, which, by contrast, is the case in many other Western countries. In A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669, a shared residence order was considered to be an unusual order to be granted in unusual circumstances. At the present time it is probably easier to obtain an order from the courts granting leave to remove than it is to get a shared residence order. There is a world of difference between the non-resident parent being available and actively getting involved in the day-to-day routine aspect of a child's life, and a situation whereby this parent's involvement is reduced to essentially holiday contact. As a father and litigant in person in one of the cases listed in the analysis, I speak from first-hand knowledge on this matter.

Another factor often overlooked is that by making an application to remove the resident parent is actually denying himself the services of a 'back up' parent to help share the responsibilities of bringing up their child. This is a factor which is given little weight during contested proceedings, but is one which generally becomes relevant with the passage of time. Regrettably, our adversarial system allows little room for reconsideration by the resident parent, because changing his mind after being granted leave to remove would be seized upon as indecision by the opposing side's lawyers, thereby often making these applications irreversible, to the detriment of the children's welfare.

(3)In Re H it was indicated that there had to be some 'compelling reason' to justify a court preventing the custodial parent from taking a reasonable decision to live outside the jurisdiction. I would suggest that the compelling reason, central to a considerable number of these cases, is so blatantly obvious that nobody has thought to run it. The compelling reason is that the child needs a close and continuous relationship with both parents, and an application to remove effectively prevents this from happening. In the spirit of Children Act 1989, s 1(1), surely this question should be posed the other way round. There should be a compelling reason why a child should be taken abroad in the first place. This would have the effect of elevating these applications to the status of an exceptional order to be made in exceptional circumstances. This approach has been taken, for instance, by the US Supreme Court in Tropea v Tropea, New York, where it was ruled that:

'whenever a proposed move unduly disrupts or substantially impairs the non-custodial parent's access rights to the children, the custodial spouse ... must bear the burden of demonstrating exceptional circumstances'

Such an approach would have the additional benefit of bringing domestic law in line with human rights. Time alone will tell whether Poel v Poel [1970] 1 WLR 1469 and Re H will be able to stand up to the scrutiny, under Art 8 of Convention, which will inevitably start when the Human Rights Act 1998 comes into force.

Yours faithfully,


Families Need Fathers

Last updated - 26 May 2000

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