International Relocation Cases– No Change There Then

Alistair MacDonald QC

St Philips Chambers

Birmingham

Introduction

1.Be it state of the art communications or faster and more efficient air travel, no matter how small modern technology makes our world, the permanent removal of a child from the jurisdiction by one parent whilst the other remains behind inevitably raises extremely difficult legal, moral and emotional issues. The preponderance of research shows that children who achieve the best outcomes following parental separation are those who are able to maintain a good relationship with both their parents.[1] In S v A[2]Deputy Bailiff Birt rightly described removal cases as posing “an agonisingly difficult decision for the court.” It is however less easy to agree with the Commissioner Hamon’s view in B (LA) v B(DM)[3]that the law governing these cases is “surprisingly clear”.

2.Arguably, these already difficult decisions have been rendered even more complicated for the legal practitioner by the continuing and often vibrant debate concerning the legal principles properly applicable to them. The courts of the England and Waleshave been wrestling for some years with the debate concerning the Court of Appeal’s seminal decision in Payne v Payne.[4] Theextensive publicity concerning the Court of Appeal’s recent decision in K v K (Relocation: Shared Care Arrangement)[5]suggests that these are issues which also touch the wider public conscience. The courts in Jersey have likewise had to wrestle with this issue on a regular basis. How then does the family lawyer successfully navigate the stormy legal seas concerning relocation?

The Legal Framework

3.In England and Wales the statute governing the question of removal from the jurisdiction is the Children Act 1989. In Jersey it is the Children (Jersey) Law 2002. Section 2(7) of the 1989 Act and Art 3(6) of the 2002 Law provide that where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility but that these provisions do not affect the operation of any other statutory provision which requires the consent of more than one person in a matter affecting a child. Thus, where a residence order is already in force under s.8 of the 1989 Act or Art 10(1)(c) of the 2002 Law, by virtue of s.13(1) of the 1989 Actand Art 14 of the 2002 Law no person may remove the child from the jurisdiction without the consent of every person who has parental responsibility or the leave of the Court. In this context an application to the court is thusrequired where the removal is disputed. Further, andnotwithstanding the terms s.2(7) of the 1989 Act, within the English jurisdiction it remains good practice,where there is no residence order in force,for an application be made to courtfor an order under s.8 of the 1989 Actwhere the proposed removal is disputed by the parent who is staying behind.[6]

4.Where the application to remove the child is made under the umbrella of s.8 of the1989Act or Art 10 of the 2002 Law, by virtue of s.1(1) of the Act and Art 1(1) of the Law, the child’s best interests will be the paramount consideration of the court and the court will be required to consider the welfare checklist under s.1(3) of the Act and Art 2(3) of the Law. Even where a residence order is in force,whilst there is no statutory requirement to do so,the English courts have made clear that the child’s best interests remain the paramount consideration and the welfare checklist should be considered.[7] The Jersey likewise authorities make clear that in considering all applications for leave the court must hold the child’s welfare to be paramount,[8] the welfare checklist set out in Art 2(3) of the Children (Jersey) Law 2002 should be considered and careful consideration given to the evidence of the Court Welfare Officer.[9] The Jersey courts will look to the decisions of the English courts as well as to the domestic decisions for guidance in relocation cases.[10]

5.In both jurisdictions the statutory and common law framework must be considered in light of the Human Rights Act 1998 and the Human Rights (Jersey) Law 2000 respectively. Where one parent applies to remove the child from the jurisdiction, the Art 8 rights of the child and the parents must be balanced as against each other.[11] In achieving this balance, particular importance will be attached to the best interests of the child,depending on their nature and seriousness.[12] Within the English jurisdiction it is said that there is no conflict between the principle that the children’s best interests are paramount and the balancing exercise required under Art 8. There is however a cogent argument that this belief is mistaken,to which argument I shall come to briefly below.

6.The Supreme Court has acknowledged in an ever lengthening line of authority that, pursuant to the principles of international treaty law, the English courts must have regard to the United Nations Convention on the Rights of the Child. Accordingly, within the context of removal from the jurisdiction,the domestic courts must have regard to the child’s right to respect for his or her family life under Art 16(1) of the UNCRC, the child’s right to know and be cared for by his or her parents under Art 7(1)andthe child’s rightnot to be separated from his or her parents against their will unless it is determined by competent authorities subject to judicial review that separation is in the child’s best interests pursuant to Art 9. The UNCRC is not incorporated in Jersey’s domestic law. Jersey is not bound by treaties concluded by the United Kingdom unless it wishes to be and may separately conclude treaties with foreign governments except concerning matters reserved to the Crown. However, the European Court of Human Rights has made it clear that the ECHR must be interpreted and applied by reference to the UNCRC.[13] In the circumstances, in applying the Human Rights (Jersey) Law 2000 the Jersey Courts should give effect to the ECHR as interpreted in light of the UNCRC.

7.Thus, in both our jurisdictions, the primary legal framework requires that, in respect of an application to remove the child permanently from the jurisdiction, the court must exercise its discretion by reference to the statutory requirement that the child’s best interests are paramount, the factors set out in the respective welfare checklists of each jurisdiction and the Art 8 rights of the child and his or her parents, interpreted in respect of the child in light of the provisions of the UNCRC.[14]

8.So far so good. However,the family circumstances which surround an application to remove the child from the jurisdiction present an almost infinite variety of scenarios for the courts to address. Within this context, the legal waters start to get very choppy when arguments begin as tothe precise interrelationship between the cardinal principlesoutlined above and as to precisely how the Court should apply those principles in the exercise of its wide discretion.The gathering storm affects equally cases in this jurisdiction as the Jersey courts will look to the decisions of the English courts for guidance in this area.[15]

Payne v Payne

9.The leading English decisionon the application of the primary legal framework is Payne v Payne.[16] Between 2001 and 2011 the English case law has, by and large, simply been illustrative of the approach endorsed by the Court of Appeal in Payne v Payne. So what does the case say about the approach to applications to remove children permanently from the jurisdiction?

Welfare is always Paramount

10.As Commissioner Hamon recognised in B(LA) v B(DM),[17]in Payne v Payne the Court of Appeal repeated the fundamental point that the court’s paramount consideration is the child’s best interests. In the debate that has ensued since Payne v Payne the fact that the case reiterated this cardinal principle in the clearest terms has sometimes been overlooked. The best interests of the child will be considered by reference to the factors set out in the welfare checklist in s.1(3) of the Children Act 1989 or Art 2(3) of the Children (Jersey) Law 2002. This will include consideration of the child’s wishes and feelings which, in appropriate circumstances, should be given considerable weight.[18] The Court of Appeal in Payne v Payne concluded that the paramountcy principle is entirely consistent with the approach required under Art 8 of the ECHR. Although the limits of time preclude a detailed analysis of this point, before leaving the topic of paramountcy it must be noted that this conclusion is arguably fundamentally flawed.

11.Whilst Thorpe LJ, reflecting prior House of Lords Authority, observed in Payne at [38] that “…the jurisprudence of the European Court of Human Rights inevitably recognises the paramountcy principle, albeit not expressed in the language of our domestic statute”, and at [57] that the Human Rights Act 1998“requires no re-evaluation of the judge’s primary task to evaluate and uphold the welfare of the child as the paramount consideration, despite its inevitable conflict with adult rights”, it is difficult to find support for these propositions within the wording of Art 8 of the ECHR and European authority. To put it shortly, when carrying out the analysis required by Art 8 a child’s best interests cannot automatically justify interference with the Art 8(1) rights as Art 8(2) mandates that such interference be justified according to its terms. In the circumstances, the child’s best interests only come into play at the Art 8(2) stage. If the child’s best interests are paramount at this point then the exercise required under Art 8(2) is and always will be otiose.[19] This is why, save for one exception,[20] the European authorities consistently make clear thatunder Art 8 the child’s interests are of particular importance depending on their nature and seriousness[21](emphasis added) rather than being paramount. As such, it is difficult to see how Butler-Sloss P’s conclusion that “the European case-law on children is in line with the principles set out in the Children Act 1989” can be sustained.[22] Given the much wider significance of these complex arguments, this is, perhaps, a topic for another day.

Reasonable Proposals of the Applicant carry ‘great weight’

12.The Court of Appeal held in Payne v Payne that, in considering an application for leave to remove, the reasonable proposals of the parent with a residence order wishing to live abroad carried great weight and, accordingly, those proposals had to be scrutinised with care,[23] the court needing to be satisfied that there is a genuine motivation for the move and not the intention to end contact between the child and the other parent.[24] Having regard to the risk that the great weight to be attached to the reasonable proposals of the primary carer would be elevated into a legal presumption that would risk the breach of the remaining parent’s rights under Art 8 and Art 6 of the ECHR, Thorpe LJ in Payne v Payne proposed the following, now famous, discipline:

“[40] …To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:

(a)Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b)If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

(c)What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(d)The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.”

The Effect on the Applicant of a Refusal

13.It is important to remember that the principles in Payne v Payne were not born in 2001. The judgement in the Court of Appeal was based upon a long line of domestic authority that commenced with Poel v Poel[25] in 1970. At [26] Thorpe LJ summarised this line of authority as demonstrating that relocation cases had consistently been decided by the application of two principles:

(a) the welfare of the child is the paramount consideration; and

(b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.

14.The first of these principles, that the child’s welfare is paramount, has been dealt with above. In relation to the second principle, Payne v Payne emphasised that, in applying the discipline outlined above, consideration of point (c), the impact on the applicant of a refusal of leave to remove, should be given particularly careful scrutiny. Indeed, in commenting on the effect of refusal of leave upon the applicant,Thorpe J said at [32] “the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother’s future psychological and emotional stability.” At [41], having set out the discipline to be applied to the assessment of the applicant’s reasonable proposals, Thorpe LJ made clear:

[41]In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”[26]

15.Many cases brought before the Court of Appeal since Payne have endorsed this approach, criticising judges at first instance for failing to give appropriate weight to the emotional and psychological wellbeing of the primary carer.[27]

Effect on Contact

16.The court recognised in Payne that the effect upon the child of the denial of contact with the other parent and in some cases his family is a very important factor in the court’s consideration; and the opportunity for continuing contact between the child and the parent left behind might constitute a very significant factor. At [84] Butler-Sloss P said “The strength of the relationship with the other parent, usually the father, and the paternal family will be a highly relevant factor.”[28] The Court was also clear that in most relocation cases the judge will need to make some evaluation of the child’s relationship with siblings and/or grandparents and/or a step-parent where applicable.

17.Butler-Sloss P also gave a comprehensive substantive judgement in Payne v Payne following the judgement of Thorpe LJ. Articulating her approach to applications for leave to remove, Butler-Sloss P stated:

“[84]The strength of the relationship with the otherparent, usually the father, and the paternal family will be a highly relevant factor, see MH v GP (Child: Emigration) [1995] 2 FLR 106. The ability of the other parent to continue contact with the child and the financial implications need to be explored. There may well be other relevant factors to weigh in the balance, such as, with the elder child, his/her views, the importance of schooling or other ties to the current home area. The state of health of the child and availability of specialist medical expertise or other special needs may be another factor. There are, of course, many other factors which may arise in an individual case. I stress that there is no presumption in favour of the applicant, but reasonable proposals made by the applicant parent, the refusal of which would have adverse consequences upon the stability of the new family and therefore an adverse effect upon the welfare of the child, continue to be a factor of great weight. As in every case in which the court has to exercise its discretion, the reasonableness of the proposals, the effect upon the applicant and upon the child of refusal of the application, the effect of a reduction or cessation of contact with the other parent upon the child, the effect of removal of the child from his/her current environment are all factors, among others which I have not enumerated, which have to be given appropriate weight in each individual case and weighed in the balance. The decision is always a difficult one and has not become less so over the last 30years.’

[85]In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them: