'Overall, it seems that the prospects for resisting an application successfully have increased over the years, and that it may sometimes be possible to distinguish the earlier Court of Appeal decisions.'What follows draws heavily on the case commentary and also on an article by a solicitor who successfully acted for fathers opposing removal of their children from the UK .
In Canada it has been held that:
a custodial parent's wish to emigrate with the children should be considered as a material change in the child's circumstances, sufficient to trigger a fresh inquiry into their interests. Matters to be considered include: existing custody and access arrangements; the child's relationship with both parents; the desirability of maximising the child's closeness to both parents; the child's views; and the disruption to the child's family ties, schooling and place in the community. The custodial parent's reason for moving is relevant only in the exceptional case of being material to her ability to meet the child's needs. 
Commenting on such a case, Mrs Justice Booth said:
'The mother's whole approach to what is a crucial aspect of her application to take this child out of the jurisdiction was not fully thought through'. [2 ]
Commenting on a case where there had been no attempt by the mother to ascertain from the child's English teachers what sort of school might be suitable, Mrs Justice Booth found that :
'it might have been expected of a responsible mother wishing to remove a child from this jurisdiction to another and to another form of education to have approached the school which that child had attended...Mr Justice Eastham said that he was
This is a matter to which the mother should have paid far more regard, in my judgment, than she has. Her approach to that aspect of the move - and it is in my view an important aspect - has been superficial'. 
'still left with very little information about (a) the comparative advantages of an English education and an American education(b) the extent of the risk of drugs and alcohol in the American system'. Mr Justice Eastham found that there was
'no convincing reason for uprooting the children'. Mr Justice Thorpe commented
'In my judgment any intelligent, responsible and conscientious preparation of the developing application for leave to remove required all those options and queries to be vigorously tackled'.
Important questions to ask
'The step-father is a very important figure indeed in these proceedings because it is only by reason of her marriage to him that the mother wishes to go to America and he is her only contact in America.There was a clear concern on Mrs Justice Booth's part that the step-father would not be up to the task.
Upon him in America so much depends for the stability and security of the home and what happens in it'. 
But Mr Justice Eastham accepted that while his decision would cause the mother unhappiness and distress, he felt that could only be taken seriously into account if the overall proposal was reasonable. 
Commenting on feelings of bitterness, a Family Law textbook says:
'the courts have been too ready to indulge the selfish feelings of mothers and second husbands [by granting them] leave to take the children of a previous marriage out of the jurisdiction ... a parent and step parent are not entitled to feel bitter ... if they cannot live in the country of their choice ... these ... are self indulgent emotions which [generally] should not be countenanced by the courts' 
The key questions are: Has the residential parent given a convincing reason for uprooting the children?, and Are there grounds for re-examining how residence was initially decided?
Mrs Justice Booth held : (the Booth test)
'[The child] needs stability and security for the duration of her childhood. She needs the love of her parents and she needs close contact with her parents and with both of them.Mr Justice Eastham held:
The principle upon which the court must act is such an issue seems to me to be this. If a child of [her] age is to be moved from the environment that she has known all her life and from a way of life to which she is completely accustomed and when she is doing very well in every aspect of her life, to go to a new country, to a new family unit. and to a new school, it must clearly be shown that that move is in her best interest.
Everything points to [the child]'s best interests as being served by remaining in this country with the exception that her mother is not here with her...
It is, of course. a balancing exercise that I have to conduct. I have to balance all the aspects of this case. I accept that there is a risk of emotional harm to [the child] if she stays in this country and is not in the day to day care of her mother.
But I am satisfied on the evidence before me that the greater risk to [the child] is the risk to her security and to her overall stability if she leaves England to go to New York... I am not satisfied that the move would genuinely serve [the child] in her development and upbringing, educationally and emotionally'. 
'Having come to the conclusion that there is no substantial advantage accruing to these boys in being moved from an environment that they have known all their life, the Booth test states that there must be very clear evidence that the proposal is in the best interests of the children.' Mr Justice Thorpe, in denying a mother the right to remove her child from the jurisdiction said :
'The court needs to be satisfied that the proposals are realistic rather an idealistic', and the mother 'swept on with that urge towards that goal with a quite insufficient attention to practicalities and without a sensible plan for reaching the ultimate goal by reasonable stages'. [Re K]
Last updated - 12 September 1997