Case law Re Removal from jurisdiction

01/02/2009 14:03


CHILDREN — Removal from jurisdiction — Permanent removal — Mother with residence order applying remove child permanently from jurisdiction — Principles applicable — Whether child's rights first and paramount consideration — Whether presumption in favour of applicant — Whether proposed removal breach of father's Convention rights — Children Act 1989, s13(1)(b) — Human Rights Act 1998, Sch1, Pt 1, art8

P (A Child) CA: Dame Elizabeth Butler-Sloss P, Thorpe and Robert Walker LJJ: 13 February 2001

Although the reasonable proposals of a parent with a residence order wishing to live abroad carried great weight, in each case the welfare of the child was always paramount and neither case law nor legislation created a presumption in favour of the applicant parent; nor did the Convention for the Protection of Human Rights and Fundamental Freedoms affect the principles of domestic law to be applied in such cases.

The Court of Appeal so stated when giving reasons for its decision on 21 December 2000 to dismiss an appeal by the father from an order of Judge Langan QC who, sitting in the Cambridge County Court on 20 October 2000, had refused the English father's application for a residence order and acceded to the mother's application to remove a child of four permanently from the jurisdiction by taking her to live in New Zealand, her home country, following the breakdown of the parties' marriage.

The father had appealed on the grounds, inter alia, that the judge's application of the principle that the court should not interfere with the reasonable decision of the custodial parent was in breach of the father's rights under art8 of the Convention.

THORPE LJ delivered the leading judgment, concluding that the appeal should be dismissed.

DAME ELIZABETH BUTLER-SLOSS P, concurring, said that the general principles established in a line of cases dating back 30 years had been challenged by counsel for the father on the grounds that they were incompatible with the approach of the Children Act 1989, which encouraged contact with the absent parent, and with arts 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as enacted by the Human Rights Act 1998, because the effect of the appeal decisions was to raise a presumption in favour of the applicant under s13(1)(b) of the 1989 Act. However in such proceedings the mother, father and the child all had rights under art8(1); inevitably those were in conflict and, under art 8(2), had to be balanced against the rights of the others. The position appeared similar to that which arose in all child-based family disputes. Since the European case law on children was in line with the principles set out in the Children Act 1989, her Ladyship did not consider that the Convention had affected the principles which should be applied in dealing with those difficult issues. The underlying principles in Poel v Poel [1970] 1 WLR 1469, as explained in Chamberlain v de la Mare [1983] 4 FLR 434, had been broadly followed in subsequent decisions and gave valuable guidance as to the approach the court should adopt, with the welfare of the child as the first and paramount consideration while recognising that the true balancing exercise must take into account the effect on the children of seriously interfering with the life of the custodial parent. S13(1)(b) of the 1989 Act did not create any presumption in favour of the applicant parent; all the relevant factors arising in an individual case, such as the reasonable proposals and the motivation of a parent with a residence order wishing to relocate, and the effects on the child of the refusal of leave and the denial of contact with the absent parent, needed to be considered and weighed in the balance. Here the judge had dealt carefully with all the relevant considerations; he had not relied on any presumption and had clearly made the child's welfare the paramount consideration. There were no grounds to set aside the order.

ROBERT WALKER LJ gave a judgment concurring with Dame Elizabeth Butler-Sloss P and Thorpe LJ.

Appearances: Philip Cayford (Miller Sands, Cambridge) for the father; Joanna Hall (Hodge Jones & Allen) for the mother. Reported by: Jeanette Burn, barrister.