(Notes by kind permission of 'Senior Counsel 1999')
The welfare of the children is the first and paramount consideration; but leave should not be withheld unless the interests of the children and those of the custodial parent are clearly shown to be incompatible, because interference by the court with the way of life reasonably chosen by the custodial parent was likely to end in frustration and bitterness which would adversely affect the children and their family background.
'The question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved? If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible. One might postulate a situation where a boy or girl is well settled in a boarding school, or something of that kind, and it could be said to be very disadvantageous to upset the situation and move the child in to a very different educational system. I merely take that as an example. Short of something like that, the court in principle should not interfere with the reasonable decision of the custodial parent.'
He then continued with these words:
'The reason why the court should not interfere with the reasonable decision of the custodial parent, assuming, as this case does, that the custodial parent is still going to be responsible for the children, is, as I have said, the almost inevitable bitterness which such interference by the court is likely to produce. Consequently, in ordinary sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary. That I believe to be the correct approach.'
Nothing that has subsequently been said in this court or elsewhere conflicts with that clear statement as to the proper approach... (pp 853E to 854C)
Thorpe LJ added:
It seems to me important to emphasise that these applications for leave are always difficult cases that require very profound investigation and judgment. But not a lot is to be gained by seeking support from past decisions, however superficially similar the factual matrix may appear to be (p 853D)
The categories of cases The cases can be grouped, broadly, into four categories, viz:
In the following cases leave was granted:
(a) Poel v Poel:  1 WLR 1469 CA; The applicant (mother) had remarried a man who obtained employment in New Zealand and wished to take the child aged 2 to that country.
(b) Moodey v Field: [unreported 13/2/1981 C.A.]: The applicant (mother) had married a man who was offered a much more highly paid job in South Africa and wished to take three children aged 11, 9 and 7 there.
(c) Barnes v Tyrrell:  3 FLR 240 C.A.: The applicant (mother) had married an Australian who had worked in England but wanted to go home where he had better career opportunity. She wished to take two children aged 12 and 11 there.
(d) Chamberlain v de la Mare: (1983) 4 FLR 434 CA: The applicant (mother) had remarried a man who was offered an important professional posting in New York and wished to take two children aged 9 and 7 there.
(e) Egerton v Winchester: Unreported 3/2/1983 C.A.]: The applicant (father) had remarried an Australian and had settled there. He wished to take the 5 year old daughter there. (This was really a straight custody contest).
(f) Lonslow v Hennig:  2 FLR 378 C.A: The applicant (mother) had married a man who had been offered a comparable job in New Zealand to that which he had here, but where money would go further. She wished to take two children aged 12 and 10 there.
(g) Belton:  2 FLR 243 C.A: The applicant (mother) had married a New Zealander working temporarily in England and wished to take the child aged 3 there.
(h) Re L: (1993) Fam Law 280: (a post Children Act case). The appeal against the prohibited steps order preventing the mother from removing the child to Australia (from where her new husband came) was allowed by consent, and so no principle can be derived from the decision, which focused only on the procedure to be followed in such cases. The relevance of the report is to demonstrate the commentator's view that the Poel principle is equally applicable after the passage of the 1989 Act.
(i) Re B (1994) Fam Law 11 C.A: The applicant (mother), who had remarried, wished to move to France with her new husband and two children aged 12 and 10. It is not clear on what basis the family wished to move, and thus it is not certain into which category this case falls (it may fall into none - and may simply be a case where the new family wished to go abroad for no articulated reason). Leave was granted, because of the "seething discontent" that refusal would cause, and because of the paradox that contact was likely to improve if leave were granted. The court accepted (by implication) that no reasonable grounds for moving had been demonstrated, but held that leave was nonetheless appropriate on account of the aforementioned factors. This was a post Children Act 1989 case, although the impact of the Act was not specifically considered.
(j) Re H  1 FLR 848 The applicant (mother) married an American and wished to move to Alabama where her new husband lived and worked. The father had played an unusually large role in caring for the child (5) until she started school. Thereafter contact arrangements became more normal i.e. staying contact on alternate weekends. Chamberlain v de la Mare approved (see above).
Leave was refused in the following cases:
(a) Bevan  4 Fam Law 126 C.A: The applicant (mother) had married an American employed here. The father had regular access: the two children aged 16 and 11 were devoted to him. The new husband was recalled to America. The mother was refused leave, and the children transferred to the father.
(b) Rowse [unreported 12/6/1985 F.D. Booth J]: The applicant (mother) had married an American in March 1984. He had been recalled to New York earlier that year and the mother wished to take the child aged 10 there. The child had spent considerable periods with the father. Leave was refused:
I am not satisfied that the mother can provide long-term security there. I am not satisfied that the father would have the closeness of contact that is necessary to the development of this child. I am not satisfied that the move would generally serve Flavia in her development and upbringing, educationally and emotionally. I differ from Dr Connell, because I place greater weight upon the risk, and as I see it is a real risk, of the father losing contact with Flavia and of Flavia losing contact with the English side of the family.
Accordingly considerable emphasis was placed on the necessity of maintaining continuing contact between the father and the child.
(c) Gurner [unreported 15/5/1989 F.D. Eastham J] The applicant (mother)'s new husband had set up a business in California and they wished to emigrate there with two children aged 14 and 7. The eldest child aged 15, it was agreed, would stay with the father in any event. The father had had much access. The 7 year old, on balance, did not want to go. Leave was refused because:
There is no convincing reason for uprooting the children. It would have a detrimental effect on the relationship of the two boys taken with their father and on the brother who stayed behind. It is true that there would be generous access in the summer, but at the moment these boys have the benefit of two parents. this would convert the situation to a one parent situation with holidays.
The distress caused to the mother was recognised by the judge: "but this can only be seriously taken into account if it is concluded overall that the proposal to go is reasonable". (cf Re F infra). Again, emphasis is placed on the importance of continuing contact between the father and the children.
(d) Re T  2 FLR 352. The applicant (mother) formed a relationship with a Frenchman and made an application to remove the child (3) to France. Father had contact every second weekend. He feared that the mother's intended move was partly intended to bring to an end his contact.
The mother's application was dismissed on the basis that it was "ill considered, ill-prepared and contrary to the interests of the child".
In the following cases leave was granted:
(a) Nash  2 All ER 704: The applicant (mother) had been offered an appointment as an Art Teacher at a university in South Africa and wished to take the child aged 5 there. The father's opposition was largely centred on his antipathy to apartheid. Leave to appeal was refused because
This decision is, it is submitted, based on an old fashioned view of "custody", namely that the custodial parent has the all-dominant voice in the decision making process concerning a child.
(b) Re F  2 FLR 116 C.A: The applicant (mother), who was Italian and had tenuous connections with England (she and the father had spent much of the marriage abroad) had been offered a good job in the USA and wished to take the child aged 3 there. She was given leave. The effect of the court's decision - not easy to follow from the report was to hold that:
(i) The court must consider whether mother's decision to leave England is reasonable in all the circumstances;
(ii) The court must consider to what extent a refusal of permission would cause her unhappiness, distress or bitterness;
(iii) In deciding question (i), the court should take into account as one factor the potential distress to the mother. (It is submitted that it cannot be right that all the mother has to demonstrate is prospective distress, if disappointed). The test, therefore, appears to be partly subjective and partly objective;
(iv) The court must consider how an order rejecting leave and the unhappiness which it would cause the mother would react on the child; and
(v) If the mother's decision in itself is reasonable, and if a refusal to allow her to move out of the jurisdiction would cause the above consequences,
Leave was granted in the following cases:
(a) A v A  1 FLR 380 C.A: The applicant (mother) was Chinese and came from Hong Kong. She spoke very little English and had no roots or family here. she would be very unhappy if she had to stay here and wished to take the 2 year old child home.
(b) Murray [unreported 30/7/1980 C.A.]: The applicant (mother) wished to join her family, who had settled in Florida. She had no real roots here and wished to take the two children aged 8 and 7 there. Leave was granted: The mother was entitled to restart her life and make her own free decision as to how that was to be done. The court was not impressed in that particular case with the father's anxiety as to truncation of his access. [It is submitted that the case might well be decided differently more than a decade later].
(c) Re V [unreported 10/8/1982 C.A. of N.I.]: The applicant (mother), a French woman, wished to take the two children from Northern Ireland back to France. A's increasing unhappiness outweighed any advantage from having the father close at hand to the children.
(d) H v H [unreported 7/10/1985 C.A.]: The applicant (mother), a Dutch woman, wished to take the three children aged 13, 12 and 7 back to Holland. She was living in poorish circumstances, had poor employment prospects here and had become "desperately unhappy". This was one of several of the cases where express reference is made to the conduct by the court of "a balancing exercise".
(e) Re R [unreported 1/7/1989 C.A.]: The applicant (mother) wished to take three children aged 13,10 and 5 back to Northern Ireland. The father had committed and act of arson on the mother's house: sentenced to 2 years imprisonment. If the mother could not leave, she would continue under a state of apprehension etc.
(f) Re W  1 FCR 842. The applicant (mother) (who was not married to the Respondent) applied to remove two children aged 12 and 9 back to her home town of Pittsburgh USA. Although the Respondent had thought he was the father of the children and they regarded him as their father, blood tests in earlier proceedings before the magistrates had established that he was not. Although the mother was not in a position to guarantee precisely such things as what job she would obtain and what schools the children would attend, she had satisfactorily established her general intent, capacity and capability. The mother did not have to show that she had a contract for a specific home. It was enough for her to show, as she had done, that she had sensible plans well under way both in relation to home and school.
(g) H v H (Residence Order: Leave to Remove)  1 FLR 529. A Swedish mother wished to take one child aged 4 back to Sweden. Leave was granted. The CA held, following M v A (q.v.), that the implementation of the Children Act had nor changed the Poel test. The judge had correctly applied s1(3) of the Act and had held that the loss of contact with the Respondent was outweighed by the distress that would be caused to the mother if leave was refused. That was a finding with which the CA could not interfere
N.B: With the exception of Murray and Re R. all the applicants were fundamentally foreign and unassimilated into British society. Thus their feelings of alienation were obviously acute.
(h) Re K  2 FLR 1006. The applicant (mother) wished to return to Nigeria from where both she and the father originated and where they were part of a large prosperous family. Father had contact to the two children, aged 9 and 8. Mother had been offered a teaching post in Lagos, although this was not the main reason for the move.
Leave was refused in the following cases:
(a) Tyler [1989 2 FLR 158]: The applicant (mother) wished to take two children aged 8 and 6 to Australia, where her family lived near Melbourne and where she had lived between the ages of 9 and 21. The application was rejected because "real contact and access would in reality come to an end" and because the mother would "survive" notwithstanding that she would suffer bitterness and frustration. Tyler, it is submitted, lends support for the proposition that the test of reasonableness is partly subjective and partly objective. The Court of Appeal approved the County Court judge's approach at pp 163A-164C:
The question ... I have to ask myself is it reasonable for the mother to want to go to Australia?... She feels Australia is her home; her parents and some of her extended family live there....she has made arrangements for a job. Certainly if she were a single woman without a family or responsibilities, there is absolutely no doubt that her desire to go to Australia would be an entirely reasonable and sensible one. But I have to ask myself, does it make a difference that she has married in this country, has been living in this country now, as I say apart from holidays, it would appear for something like 13 years and has children in this country? ....The mother although I accept she would like to go to Australia and feels Australia her home, does not have tenuous connections with the U.K., she has very considerable connections with the U.K. She does in fact have relatives living here...The fact of the matter is perfectly plain that there is a close bond between father and his sons.... she said as they get older in effect his interests in them will become more and more real. I think the truth of the matter is that she knows ... that the relationship between the father and their sons is a warm loving relationship...the second thing is, what access would there be, in reality, if she goes to Australia? ... The truth of the matter is that the behaviour of the mother over the last few months, well over the last year I suppose, does give good grounds for the father and indeed for the court to fear that for all practical purposes real access and real contact between the boys and their father would come to an end if the boys went to Australia now....is it reasonable to deprive them of that root and of their important relationship with their Other? Is the relationship which they would have with their grandparents in Australia, whom the Other frankly admits are very pleasant people... a proper substitute? I am bound to say I do not think in this case that it is, and therefore I come to the conclusion, first of all, on answering the first question, that the desire of the mother in this case, to remove the small boys from the jurisdiction at this age is not reasonable.
Additionally, the case lends strong support for the consideration, as a matter of central significance, of the quantity and quality of the father's continuing contact the children.
(b) M v M  FLR 303 C.A: Grant of leave set aside and re-trial ordered. The applicant (mother), a French woman, wished to take the two children aged 13 and 8 back to France "because it was her home". The County Court judge found that she would suffer the adverse effect of distress if leave were not granted; and although this finding was the subject of a ground of appeal, that ground was rejected. However, the Court of Appeal concluded that the judge, in carrying out the balancing exercise, failed to take into account "the potentially serious and harmful consequences to the children if the mother was successful". The judge had found that the mother had sought unconsciously (and successfully) to put her side of the case into the children's minds. Although when with their father they had a thoroughly enjoyable time and they had a very good regard for him, he did not sufficiently examine the consequences of the children's indoctrination by the mother. Further, the judge had found that the father's fears that he would lose touch with the children altogether were justified.
(c) Re K  2 FLR 98 F.D. Thorpe J: The applicant (mother) was an American who had lived in England from 1972. She married the father in 1985 and their child was born in 1987. In 1988 she petitioned for divorce. In her application for leave, heard in 1991, when the child was nearly 4, the mother's case was that she wished "to re-establish her life in the U.S.A.". The application was refused first and foremost [181k] because the continuation and development of the relationship between father and child was of very great importance; and a proposal reducing that contact to something like annual visits would be an extremely retrograde step. The mother's proposal was for annual contact amounting to 21 days. The effect of the curtailment of the access was described as follows:
In reality, that means that the relationship between L and her father, which at present is plainly set on a rising graph, would be subjected to a set-back from which there would be real difficulties in achieving any worthwhile growth and development in the immediate period ahead
The application was also refused on the secondary ground that the mother's proposals displayed insufficient attention to practicalities and no sensible plan for achieving any ultimate goal by reasonable stages. But the emphasis in the case was on the crucial importance of contact between the father and L
(d) M v M (Minors)(Jurisdiction) (1993) Fam Law 396: The applicant (mother), an Israeli, who had lived here since 1979/79 wished to return to Israel with two children aged 12 and 11. The children had expressed the wish to remain in England and have greater contact to the father. Leave was granted at first instance, but set aside on appeal, the CA holding that the judge had paid no more than lip-service to the views of the children. A move would disrupt contact and result in a very substantial change in education and the main language of the children. However, the CA emphasised that where a custodial parent (sic - this was a post Children Act case) wished to emigrate abroad, and the reasons for doing so were reasonable, leave would normally be granted.
(e) M v A  2 FLR 715: The applicant (mother), a Canadian, who had lived here since 1977 wished to return to Canada with two children aged 12 and nearly 9. The father had very substantial contact with the children.
The Court found that the children did not wish the arrangements to change. The application was dismissed on four grounds:
(i) it was not in the interests of the children to deprive them of shared parenting;
(ii) the children's wishes were an important factor;
(iii) the mother's plans were not reasonable, nor properly thought out nor researched; and
(iv) the mother would be able to accept the decision and act appropriately.
This and the case of H v H (supra) are the only cases in which the impact of the Children Act 1989 on the Poel principle are explicitly addressed. The Court held that the Poel test "remains the same", but that the Act required an emphasis in relation to the wishes of the children where they are of sufficient age and understanding to be able to express any views.
It can be seen, therefore, that by far the highest incidence of refusal of leave is within this category. This is, perhaps, unsurprising for in this class of case there is often no positive objective reason for wishing to leave, but merely a dissatisfaction with life here.
There are only two cases falling into this category: in both cases, leave was refused.
(a) Hurwitt v Hurwitt  3 FLR 194. The applicant (mother) had custody of four girls aged between 15 and 10. She wished to emigrate to Australia as a spondee of the Fairbridge Society. She and the children would live at a farm school while the mother looked for work. Application refused because of speculative picture (cf Re W [1994l 1 FCR 842)
(b) MH v GP (Child: Emigration)  2 FLR 106 (Thorpe J). The applicant (mother) wished to emigrate to New Zealand with the child aged 4 (D) as she was convinced that that country "with its smaller population and ideal of nature offers not only for her but also for D a way of life superior to anything that can be assured him in this jurisdiction".
The judge found that the maintenance and development of the relationship between D and his father is of such importance to his future welfare that the reasonable proposals of his mother as his primary carer are quite incompatible with welfare. The judge found that the decision
Last updated - 26 November 1999