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After separation, it appears all too easy for a resident parent to go and live overseas and so prevent the other parent seeing their child again.

The case-law governing “leave to remove” as it is called is a 2001 case, Payne v Payne. Here is the key principle which it established:

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.”

Intentionally or not, this case created a default position that relocation applications should be granted, unless the non-resident parent can persuade the court otherwise.

However, research has shown the damage which can be inflicted on children who are removed to another country, not only away from the other parent, but from their extended family and familiar surroundings at a time of turmoil following parental separation, and in the last week, Lord Justice Wall invited legal challenges to the received wisdom of favouring the relocating parent:

There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.”

This may the best news in a decade on this subject.

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