Tuesday, 8 July 2014

Leave to Remove - New Case Law - P (Children)

P (Children) [2014] EWCA Civ 852

A successful appeal against a leave to remove decision, with the judgment set aside and an order that the case be reheard.

Ryder accepted that the court had placed too great an emphasis on motive as reason for refusing leave to remove. While there had been acrimony at the time the relationship had broken down, the "mother had not refused contact or breached a court order."

Ryder goes on to point out that other matters were not given sufficient examination, such as the mother's plans in Germany (accommodation, employment etc) and the extent of the relationship between the children and parents.
"15. There are other issues between the parties, but in the context that I have come to the conclusion that the order must be set aside and the application re heard, I do not propose to express any detailed view about the same, save to say that a relatively superficial view was taken of accommodation that was available in Germany and also a superficial view of the financial needs and obligations of the parties to each other and the employment prospects of the mother in Germany.  Likewise, the strength of, that is the nature and extent of the relationship of each parent and the children, was relatively superficially addressed.  Those questions, alongside other welfare factors, need to be re explored without what became the dominant question of motivation which became decisive in the way that it did."
The judgment highlights the importance of not being overly reliant on a single point, and more importantly, not where there is insufficient evidence to support that point.

What needs to be properly explored is whether relocation is in the child's best interests, and the examination and balancing of all the welfare matters, motive and the practicalities related to the parents' plans (including the enforceability of contact, even if relocation is to a country covered by the Brussels II Revised Regulations). On this last point, while a contact order may, in principle, be enforceable in another EU member state, can the UK based parent afford the costs related to enforcement in another jurisdiction? Recent submissions to the EU Petition's Commission by a German father and Mr McGovern of Families Need Fathers suggest this is not as straightforward as some may believe.