If one parent wants to move the children to another country then the courts must ensure that they properly evaluate both parents’ plans and proposals. The pros and cons of both positions must be considered.
This marks an ongoing move away from a 2001 case called Payne v Payne which has caused immense difficulties for fathers who objected to mother’s plans. In that case the courts had indicated that where a primary carer – in that case it was the mother – wanted to remove the children from the jurisdiction that the following five stage test should be applied;
- Consider if the mother’s application is genuine or motivated by the desire to frustrate contact with father or remove him from the child/children’s’ life.
- Is the proposal practical and sustainable? Has it been thought through in terms of financial, educational and health issues?
- If the application was refused, what would the impact be on the mother?
- What impact would the removal have upon the father and his relationship with the children if it was permitted?
- Is the father’s objection genuine or is it designed to exert control over the mother and/or children?
Thankfully the courts are now moving away from this test.
The above tests were only ever intended to be guidelines but had taken on the weight of principles, particularly by those representing mother’s who wanted to rely upon them.
The courts’ paramount consideration will always be the children’s’ welfare and what is in the children’s’ interests. The Payne criteria lost sight of that. Other considerations could potentially take its place such as the sincerity of the mother’s application, how well thought through and planned the move was and, most remarkably and offensive to fathers, the impact or distress that a refusal would have upon the mother.
The Court of Appeal case of F (A child) (International relocation cases) helps to undermine the influence of the earlier case.
This later case reasserts the importance of the children’s’ welfare as being the paramount consideration. The welfare checklist is set out in the Children Act 1989 as follows;
s1(3) …a court shall have regard in particular to—
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b)his physical, emotional and educational needs;
(c)the likely effect on him of any change in his circumstances;
(d)his age, sex, background and any characteristics of his which the court considers relevant;
(e)any harm which he has suffered or is at risk of suffering;
(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g)the range of powers available to the court under this Act in the proceedings in question.
Further helpful guidance can be found in paragraph 28 of the judgment in Re F. It states that parents are expected to enter “Into arrangements that plan for their children’s long term welfare by providing for a meaningful relationship between each adult and each child.”
“This sounds rather like stating the obvious,” explains Neil Denny, Lincoln based divorce lawyer with Diane Genders Solicitors “and yet the courts clearly felt that it needed to be repeated.”
As a result the courts will evaluate the merits and downsides in the mother’s and the father’s position. This will go some way to rebalancing the exercise which had made the motivation and reasonability of only the mother’s plans more important. It is likely to make it harder for mothers to be able to permanently remove children to another country and will help to ensure that the father’s alternative proposals are fully considered.
If you are worried about divorce or separation and whether your children can be moved to another country then get in touch with Diane Genders Solicitors in Lincoln. You can call us on 01522 516500 or email in confidence by clicking here.