Changes in Leave to Remove Law
Leave to remove caselaw took an unexpected turn when judgment was handed down in the case of Re K on 7th July.
Until then, the Case of Payne v Payne had ruled the roost for 10 years, establishing the precedent that a resident parent could remove the children to live in another country if she wished. Of all the factors involved in such decisions (including the loss of relationship with the father left behind) Payne held that the most important was that the mother would be upset if she didn’t get her way, and if she got upset, that would be bad news for the children. The judges in this recent case stated that the Payne precedent never did place the mother’s distress above all other considerations. However, those who have lost their children in the last 10 years through the application of Payne would beg to differ.
There has been a clamour for change to this plainly absurd application of the law, and on 7th July, Re K introduced a partial change. The principle now is that Payne was only ever meant to apply in cases where one parent was the undisputed resident parent. Where, however, a shared care arrangement is in place, the Payne principles do not apply, and if either parent seeks to remove the children to another country, it will now be decided simply on whether the move is beneficial to their welfare, making it more difficult now for one parent to move the children out of the UK if care is shared.
But what does shared care actually mean? The Re K judgment makes it clear that simply having a shared residence order is not enough. Neither is it necessary that time spent with each parent is equal . However, it is necessary that both parents are substantially involved in caring for the children, or the issue of residence is still in dispute, otherwise the Payne principles still apply, and the resident parent can remove them. In the Re K case the children spent approximately equal day-time hours with each parent, and of every 14 nights 9 were spent with mother and 5 with father. The court accepted that as shared care.
Re K does not go far enough. All relocation cases should be decided on the welfare principle alone. It is plainly wrong to make distress to the mother the most important aspect in the children’s welfare in any cases at all. Re K doesn’t fix the problem of Payne, but it’s a step in the right direction.