International relocation of children is a complex area of family law which requires careful consideration before any decision is made. The primary legislation governing this issue is the Children Act 1989 and the most prominent precedent is Payne v Payne [2001].
Although the Payne case set out a well defined set of guiding principles that appeared favourable to the relocating parent, in subsequent cases where care has been shared between parents, it has not necessarily been followed as closely as expected.
Children Act 1989
The most important elements of the Children Act regarding the relocation of a child are set out in section 1. Essentially this entails a general principle for cases that deal with the upbringing of a child; the paramount consideration should always be the child's welfare.
Payne v Payne [2001]
In Payne the judge refused an application for a residence order by the father of a four year old girl. The girl's mother was then given permission to remove the girl from the UK permanently and take her to New Zealand. The father appealed but the appeal was dismissed. The case was important because it set out what became recognised as guiding principles:
- The welfare of the child is always paramount
- There is no presumption created by section 13(1)(b) (of the Children Act) in favour of the applicant parent
- The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight
- Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end
- The effect upon the applicant parent and the new family of the child of a refusal to leave is very important
- The effect upon the child of the denial of contact with the other parent and in some cases his family is very important
- The opportunity for continuing contact between the child and the parent left behind may be very significant
Subsequent Case Law
In cases of shared care courts have been reluctant to follow the precedent of Payne. An important deviation was Re Y [2004] where the mother's intention to relocate from Wales to the US was denied due to the detriment to the child and, importantly, that almost equal care was given by both parents.
The most recent and well-cited case on shared care and relocation is MK v CK [2011] which followed Re Y on appeal. In this case the court stated that the most important principle to take from Payne was that the welfare of the child was paramount. Although the other points provided useful guidance they were not considered legal principles and none of the Payne guidance upstaged the paramountcy principle . Indeed the guidance given in Payne should be seen as no more than that, particularly where there are shared care arrangements in place between parents.
Given the complexity of this area of law, we strongly encourage anyone considering relocating a child abroad to take legal advice beforehand. If you need advice or would like more information, please contact Steven Gasser whose email address is SGasser@rollingsons.co.uk or by telephone on 0808 159 5250.
