Workshop: Handling leave to remove cases

There has been extensive coverage in legal journals regarding the law relating to leave to remove cases (LTR) since the judgment in the case of K v K [2011] EWCA 793. Before K, practitioners primarily gave advice based on the principle that the child's welfare is paramount, but emphasis was given to the guidance set out in Payne v Payne [2001] EWCA Civ 166. The courts themselves followed Payne as if it were the law.

Preparation and research is key in any case, be it financial or child-related. However, where a party is seeking to remove a child from their home, other parent, school, friends, family and established way of life, research on the impact such a move has on a child is fundamental.

The following points are not indicative of what will be relevant to each LTR case but may assist in the preparation, in those circumstances where the LTR is not agreed.

(i)If you are acting for the parent who wishes to leave the jurisdiction, and you are dealing with the divorce and financial relief at the same time, inform the other side. Do not wait until the end of financial proceedings/settlement to announce a move.

(ii) Capital and income are likely to be affected by the move. If finances have been dealt with, and the application for LTR is made afterwards, consider issuing an application to deal with the ?variation of maintenance at the same time. The maintenance element is often set aside as all efforts are concentrated on the LTR application. However, if leave is given, there is likely to be an impact on the level of maintenance paid. It maybe that the costs to the non-relocating parent will mean that contact is not sustainable, so a thorough review of the financial cost of the move should be made.

(iii)Consider whether to instruct an ?independent social worker (ISW) as opposed to a Cafcass officer. Obviously cost will be a factor, but, if one parent can afford to meet the costs of the ISW, explore whether they would fund this.

(iv) What expert evidence is needed (if any) '“ would a report from an educational psychologist assist the court in assessing the impact a different educational system would have on a child and their emotional/social/educational development? Consider seeking advice from a family law specialist in the proposed country of relocation as to what remedies the court has there if contact is not promoted or the agreement is disregarded once the relocating parent has left England. Such information is helpful to the court when considering the obstacles a non-relocating parent may have, especially when the latter has concerns that contact would be curtailed if permission were granted.

Raise the issue of having a mirror order '“ how much will it cost, what will be needed, how long will it take? If you are relying on the mirror order being in place as part of your agreement to the relocation, then having a timetable in place assists both parties as to when the child/children should be moved.

(v)The party seeking to move should provide as much detailed information with supporting exhibits about the intended location and how this will impact upon the child. This sounds obvious but it is surprising how limited such information can be. Factors to consider: where will you be living, with whom, how close is the proposed neighbourhood to school, the carers' friends, family, new workplace and public transport. How will the non-relocating parent be able to travel to see the child and how much will it cost? What can the relocating parent do to promote and maintain contact?

(vi) Conversely if you are acting for the parent opposing the move, how are the changes going to impact upon the child, and your relationship with them? Has the relocating parent's case been thoroughly considered and researched? Can you afford the flight and accommodation costs? If the child's holidays are to be spent primarily with you, can you get sufficient annual leave or will you need to rely on help? Scrutinise the supporting documents, are they all gloss '“ exactly how long including travel to and from the airport is the new proposed home, does the child's proposed new class in school correspond with his class in England? What are the implications for them socially and educationally?

(vii)If the proposed move is being made because the relocating parent wishes to live with/marry a new partner, consider how tested the relationship is. The new partner should file a statement, be available to meet with Cafcass (or the ISW) and be able to give evidence at the final hearing.

(viii) Who should file evidence, other than the parents? New partners, family members and/or friends in the ?proposed location who can advise how the school system works, the social network they can expect to be part of, the support that is provided to the relocating parent. The parent who opposes the move likewise can rely on the ?similar circle of witnesses, who can emphasise the stability that the child has in this jurisdiction.

(ix) Finally, a point of caution, in certain ?circumstances, costs can be made in children cases so be aware how you litigate (Re S (Leave to Remove: Costs) [2010] 1 FLR 834).

Copyright & permissions