Shared Parenting Information Group (SPIG) UK

- promoting responsible shared parenting after separation and divorce -

Removal from Jurisdiction - UK cases

see also Law Reports - for an up to date list of cases

CA = Court of Appeal, FD = Family Division of the High Court

Au v Au - CA - [1979] Fam Law 116

(Removal from jurisdiction - best interests of the child)
The fundamental question is: What is in the best interests of the child? Young child with mother - she is going to have the best chance of bringing the child up reasonably well. Allowed to go to Hong Kong. (Poel v Poel considered)
B (minors)(removal from jurisdiction) - CA - [1994] Fam Law 11
(Removal from jurisdiction - seething resentment if thwarted)
Judge considered 'seething resentment' on the part of the daughters, mother and stepfather if not allowed to go. Mother undertook to return the girls regularly for staying access. Allowed to emigrate to France.
Belton v Belton - CA - [1987] 2 FLR 343
(Removal from jurisdiction - need for speedy resolution)
Joint custody. Mother remarried and decided to emigrate to NZ. Father concerned about loss of contact. The case required an immediate decision and the judge was wrong to adjourn for four months to give the child time to establish links with her father.The judge failed to take account of the stresses such a delay would place on the family waiting to emigrate. Application allowed. (Poel v Poel and Chamberlain v de la Mare applied)
Chamberlain v De la Mare - CA - [1983] FLR 434
(Removal from jurisdiction - welfare of children the first and paramount consideration)
First and paramount consideration was welfare of the children. Allowed to emigrate to US.
D (a minor)(child: removal from jurisdiction) - CA - [1992] 1 FLR 637
(Removal from jurisdiction - mother broke undertaking to return)
On giving an undertaking to return the child, mother was permitted to take child on holiday to Turkey. She did not return. Judge was wrong to refuse father's application for a specific issue order for return of the child.
F (a ward)(leave to remove ward out of jurisdiction) - CA - [1988] 2 FLR 116
(Removal from jurisdiction - criteria)
Criteria: 1) To what extend a refusal of permission would cause the mother unhappiness, distress or bitterness in having her reasonable desire to emigrate frustrated. 2) How the mother's unhappiness would react on the child. 3) Whether the decision is reasonable. 4) If the refusal to allow the custodial parent to emigrate would have these consequences. 5) Whether the child's well being and future happiness would be incompatible with allowing the custodial parent to remove her from jurisdiction. Mother a career woman with only tenuous connections with England - allowed to emigrate to US.
H v H (residence order: leave to remove from jurisdiction) - CA - [1995] 1 FLR 529
(Removal from jurisdiction - Children Act has not changed the tests)
The Children Act 1989 has not fundamentally altered the underlying factors which need to be taken into account. Mother would be distressed and unhappy if her application refused. Allowed to emigrate to Sweden.
K (a minor)(removal from jurisdiction) - FD - [1992] 2 FLR 98
(Removal from jurisdiction - relationship between father and child of very great importance)
The continuation and development of the relationship between father and child was of very great importance, and the proposal to reduce that contact to something like annual visits would be an extremely retrograde step. Mother's proposals displayed a quite insufficient attention to practicalities and no sensible plan for achieving any ultimate goal by stages - they were so ill thought out that they gave anxiety as to what might happen to the child without a firmer foundation. Application refused.
L (a minor)(removal from jurisdiction) - FD - [1993] Fam Law 280
(Removal from jurisdiction - applications should not be heard by justices)
Applications should be heard by the Family Division where there was an accumulated fund of experience and where an established line of authority would determine how the discretion should be exercised.
Lonslow v Hennig - CA - [1986] 2 FLR 378
(Removal from jurisdiction - proposed move reasonable)
The court would not lightly interfere with such reasonable way of life as was selected by the parent to whom custody had been given. The welfare of the child was the paramount consideration. Mother had remarried, and to require the new family to stay in this country against their wishes would have serious adverse effects, particularly on the two girls. Allowed to emigrate to NZ. (Poel v Poel and Chamberlain v de la Mare applied).
M v A (wardship: removal from jurisdiction) - FD - [1993] 2 FLR 715
(Removal from jurisdiction - Father playing an important role; children not wanting to move.)
Mother's plans ill thought out and little researched - did not constitute reasonable plans and did not accommodate the needs and wishes of the children who loved both homes and did not wish the status quo to be changed. Frequent contact would have been impracticable and this would be detrimental on the boys' welfare. The father played as important a role in the boys' lives as the mother. The boys needed the security of their parents and they needed to know their future was settled. Mother had an established life in England and refusal of her application would not cause damage to her relationship with, and care of, the children. Application refused.
M v M (minors)(jurisdiction) - CA - [1993] Fam Law 396
(Removal from jurisdiction - children's views)
The children were articulate and intelligent and were of an age where considerable weight should be given to their views. The move to Israel would disrupt contact with their father and would mean a very substantial change in education and the main language used. Welfare report supported status quo. Application dismissed.
M v M (minors)(removal from jurisdiction) - CA - [1992] 2 FLR 303
(Removal from jurisdiction - effect on relationship with the father)
Judge was wrong not to take into account the father's fear that he would lose touch with his children - both because of his inability to pay the travel costs to France, and because there would be no effective counterbalance to the mother's indoctrination of the children against the father. However it had not been clearly shown that removal from jurisdiction was against the children's interests. Case to be reheard.
MH v GP (child: emigration) - FD - [1995] 2 FLR 106
(Removal from jurisdiction - importance of child's relationship with father and his family)
The maintenance and development of the child's relationship with the father (and through him the other members of the family) was of such importance to his future welfare that the mother's proposals were quite incompatible with the child's interests. Application refused.
Poel v Poel - CA - [1970] WLR 1469
(Removal from jurisdiction - court has to have regard for welfare of parent)
The court had to have regard for the welfare of the custodial parent, since if their wishes were thwarted and they became unhappy it might adversely affect the child. The court should not lightly interfere with the reasonable way of life chosen by the parent to whom custody had been 'rightly' given. Allowed to emigrate to NZ
T (Removal from jurisdiction) - CA - [1996] 2 FLR 352
(Removal from jurisdiction - application not sufficient to justify reversal of residence order)
The mother applied to remove the child from jurisdiction. The judge found her application to be ill-prepared, ill-considered and contrary to the best interests of the child. Residence was transferred to the father. Overturned on appeal. HELD: 1) Mothers who were generally competent should not risk losing primary care of their children by making an unsuccessful attempt to remove them from jurisdiction. 2) The parent with primary care is entitled to select the place and country of residence of the child unless that selection is shown to be plainly incompatible with the child's welfare. Status quo restored
Tyler v Tyler - CA - [1989] 2 FLR 158
(Removal from jurisdiction - damage boys' relationship with father)
Joint custody. Close bond between boys and their father. Removal to Australia unreasonable. Judge considered whether denial would cause bitterness and frustration in the mother likely to have an adverse effect on the children. Satisfied that mother could cope with the disappointment and would not allow it to damage boys' relationship with their father.

David Cannon
Last updated - 11 March 1997

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