The court’s considerations in relocating children had divided in recent years depending on whether the relocation was to be within the country or to another jurisdiction.
When the relocation was to another country or legal jurisdiction (Scotland and Ireland have different laws to England and Wales after all) then the court had got into the habit of referring to a previously decided case called Payne v Payne. That case suggested that the courts should consider the following points in deciding whether to allow the parent to leave the jurisdiction or not.
We set out the checklist below and you will immediately notice its gender specific language. The checklist was greatly criticised in the more recent case of Re F. which we wrote about on our divorce blog and relocating children overseas article HERE.
- 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?
Re F essentially clipped the wings of the Payne v Payne case. It reminded judges that they must consider something called the Welfare Checklist as set out in law within the Children Act 1989 s. 1(3)
While the Payne v Payne list might be an aid it was never intended to rival or replace the Welfare Checklist. The welfare checklist states that ;
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.
Re: F made it clear when it quoted from another earlier judgment that when relocating children that;
“The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option”
This was important as the Payne checklist placed an emphasis on consideration of the proposing parent’s plans – were they reasonable and made with the proper motives in mind? Re F stated that both the proposing parent’s plans and the plans of the parent who wanted to keep the children where they were need to be considered.
One question remained however; did this apply if the parent only wanted to move the child or children to another city or county as opposed to another country?
The recently decided case of Re C has confirmed that it does.
In a recent case we argued that the principles in Re F meant that the court had to consider both the pros and cons in both parents’ plans and not just only approve the plans of the mother. We argued that that Re F made this necessary but we were met with the reaction that Re F was not relevant as it related only to international cases which were seen as being different.
Now whether one parent is looking to remove the children to another city, county or country then the considerations the court must carry out are the same.
The paramount concern will be the children’s welfare as set out in the welfare checklist above and after that the court must fully consider the pros and cons of both sets of proposals, that is to say both those of the father and the mother alike.
If you have questions about relocation of children, children arrangements and what used to be called contact and residence then contact Diane Genders specialist family solicitors in Lincoln on 01522 516500. Alternatively you can email us in confidence by CLICKING HERE.