Lawful Removal from Jurisdiction

This page is under construction –

For a helpful and informative discussion of recent developments in the law in England & Wales and the vexed question of removal of children from Hong Kong following divorce (although he is incorrect to say ‘joint custody, rather than sole custody, has become the prevailing order’ here) see Patrick Siu The Law on Relocation of Children: Bringing about Change.

Leading Authority in Hong Kong

SMM v TWM CACV 209/2009, [2010] 4 HKLRD 37 – Hartmann JA – The parties agreed that the applicable principles governing relocation application are based on the Payne v. Payne line of cases. The Family Court is therefore bound by both Poel v Poel [1970] and Payne v Payne [2001] 1 FLR 1053, [2001] EWCA Civ 166. Since then the Court of Appeal in England and Wales has handed down its most recent decision on relocation namely MK v CK [2011] EWCA Civ 793, which in broad terms reiterates that in all cases concerning children – ‘the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration.  Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child’ per Black LJ, paragraph 141.

These principles have been applied in Hong Kong, for example, in M v. B (Removal of Children from the Jurisdiction) FCMC 6078/2008 by H H Judge Bruno Chan,  MJP v JWP FCMC 9154 / 2008 by HHJ Melloy and in  JHCI v MSYI (formerly known as MSY) FCMC 12528/2011.

Payne is based on the earlier decision of Poel v. Poel [1970] 1 WLR 1469.  In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne – see also Re L [2012] EWHC 3069 (Fam) – Payne v Payne [2001] EWCA Civ 166 held at paras 85 -86:

‘In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge`s decision on residence was not an issue before this Court.’

In the matter of S (a Child) [2012] UKSC 10

Appeal by mother to the Supreme Court against an order of the English Court of Appeal that she should immediately return her son, aged two, to Australia. The mother relied on Art 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980. Appeal allowed.

Background to the Appeals

A mother appeals against an order of the English Court of Appeal that she should immediately return her son, WS (hereafter “W”), who is aged two, to Australia. The order was made pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (‘the Convention’) and to section 1(2) of the Child Abduction and Custody Act 1985, which incorporates the Convention into domestic law [1].

The mother is British, with Australian citizenship; the father is Australian [4]. The parents, who were not married, lived with W in Sydney [4]. In 2005 the mother had moved to Australia with her British husband; her marriage failed and she was divorced in 2008 [8]. In October 2008 W’s parents began to cohabit [8].

Between 1994 and 1998 the father had been a heroin addict and unfortunately, the beginning of their relationship and of the mother’s pregnancy in February 2009, was a period of impending financial disaster for him, which ended in the collapse of his business with massive debts [9]. The father later took work as an estate agent, but contributed little to the household expenditure, which was largely met by the mother who was employed as a specialist clinical nurse [9]. The grave financial problems led to serious alcohol and drug relapses on the father’s part between 2009 and 2011 [10].

The mother suffered mental health problems, including anxiety and depression relating to separation from her husband in 2007, for which she took medication until she became pregnant in 2009 [17]. From June 2010 the mother had had extensive psychotherapy in Australia, which continued after her return to the UK [17], for a chronic anxiety condition [18].

In January 2011 the relationship between the parents began to break down. On 19 January 2011 the mother contends that she found the father injecting himself in the car in the garage and so she called the police and told him not to enter the flat again; the father admits only to drinking that day [11], although subsequently in reply to emails from the mother he did not deny the drug-taking [11]. In light of the many text and emails that were to pass between the parents from January and June 2011, the mother’s serious allegations against the father were admitted or could not be realistically be denied [7]. On 27 January 2011 the Australian police obtained on the mother’s behalf, without notice, an Apprehended Violence Order (similar to a non-molestation order) [12].

On 2 February 2011 the mother removed W to England, without the father’s consent or the permission of an Australian court. The removal was therefore in breach of the father’s rights of custody under Australian law and so it was wrongful for the purpose of Article 3 of the Convention. The only defence raised by the mother to the father’s application for an order for the summary return of W to Australia under the Convention was under Article 13(b) that “there is a grave risk that his … return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” [5].

The evidence of the mother’s psychologist was that, in the event of a return of W, with the mother, to Australia, her fear of the father’s mental state and of his impulsive actions towards her together with the stress of isolation in Australia from her family would be likely to cause clinical depression, which in turn could diminish her secure attachment to W [18]. Further evidence from the jointly instructed psychiatrist was that the mother had suffered from Battered Women’s Syndrome, a form of Post-Traumatic Stress Disorder, followed by an acute stress reaction [25]. The psychiatrist appeared to consider that the necessary protective measures mainly comprised treatment for the father, but his evidence could, however, have been clearer on whether the protective measures suggested by the father would, in the event of return, protect W against the risk of physical or psychological harm [26].

At first instance, Charles J had declined to order W’s return to Australia. The Court of Appeal ordered W’s immediate return. The issue in this appeal was whether that Court should have proceeded on the basis that that there were nothing more than disputed allegations to support the mother’s defence. A question also arose about the correct approach to the subjective perceptions of risk held by a parent.

See Family Law Week

K v K [2011] EWCA Civ 793; [2012] Fam. 134; [2012] 2 W.L.R. 941; [2012] 2 F.L.R. 880; [2011] 3 F.C.R. 111; [2011] Fam. Law 1078.

Y (Leave to Remove from Jurisdiction), Re
[2004] 2 F.L.R. 330; [2004] Fam. Law 650; Fam Div

Payne v Payne
[2001] EWCA Civ 166; [2001] Fam. 473; [2001] 2 W.L.R. 1826; [2001] 1 F.L.R. 1052; [2001] 1 F.C.R. 425; [2001] H.R.L.R. 28; [2001] U.K.H.R.R. 484; (2001) 165 J.P.N. 466; (2001) 98(10) L.S.G. 41; (2001) 145 S.J.L.B. 61; Times, March 9, 2001; Independent, February 22, 2001; Daily Telegraph, February 27, 2001; Official Transcript; CA (Civ Div)

All Cases Cited

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W (Children) (Relocation: Permission), Re
[2011] EWCA Civ 345; [2011] 2 F.L.R. 409; [2011] 2 F.C.R. 261; [2011] Fam. Law 693; (2011) 155(13) S.J.L.B. 30; Official Transcript; CA (Civ Div)

C v D
[2011] EWHC 335 (Fam); [2011] 2 F.L.R. 701; [2011] Fam. Law 588; Official Transcript; Fam Div

J v S (Leave to Remove)
[2010] EWHC 2098 (Fam); [2011] 1 F.L.R. 1694; [2011] Fam. Law 27; Fam Div

AR (A Child) (Relocation), Re
[2010] EWHC 1346 (Fam); [2010] 2 F.L.R. 1577; [2010] 3 F.C.R. 131; [2010] Fam. Law 932; Official Transcript; Fam Div

H (A Child), Re
[2010] EWCA Civ 915; [2010] 2 F.L.R. 1875; [2010] Fam. Law 1069; Official Transcript; CA (Civ Div)

D (Children) (Relocation: Permission), Re
[2010] EWCA Civ 50; [2010] 2 F.L.R. 1605; [2011] 2 F.C.R. 313; [2010] Fam. Law 1175; Official Transcript; CA (Civ Div)

T (A Child), Re
[2009] EWCA Civ 20; [2009] 2 All E.R. 700; [2009] 1 F.L.R. 1157; [2009] 1 F.C.R. 584; [2009] Fam. Law 294; (2009) 153(5) S.J.L.B. 27; Official Transcript; CA (Civ Div)

W (Children) (Leave to Remove), Re
[2008] EWCA Civ 538; [2008] 2 F.L.R. 1170; [2008] 2 F.C.R. 420; [2008] Fam. Law 1004; (2008) 152(22) S.J.L.B. 29; Official Transcript; CA (Civ Div)

G (Children) (Leave to Remove), Re
[2007] EWCA Civ 1497; [2008] 1 F.L.R. 1587; Official Transcript; CA (Civ Div)

Y (Leave to Remove from Jurisdiction), Re
[2004] 2 F.L.R. 330; [2004] Fam. Law 650; Fam Div

Practice Direction (CA: Citation of Authorities)
[2001] 1 W.L.R. 1001; [2001] 2 All E.R. 510; [2001] 1 Lloyd’s Rep. 725; [2001] C.P.L.R. 301; [2001] 1 F.C.R. 764; (2001) 145 S.J.L.B. 132; Times, May 1, 2001; CA (Civ Div)

Payne v Payne
[2001] EWCA Civ 166; [2001] Fam. 473; [2001] 2 W.L.R. 1826; [2001] 1 F.L.R. 1052; [2001] 1 F.C.R. 425; [2001] H.R.L.R. 28; [2001] U.K.H.R.R. 484; (2001) 165 J.P.N. 466; (2001) 98(10) L.S.G. 41; (2001) 145 S.J.L.B. 61; Times, March 9, 2001; Independent, February 22, 2001; Daily Telegraph, February 27, 2001; Official Transcript; CA (Civ Div)

Piglowska v Piglowski
[1999] 1 W.L.R. 1360; [1999] 3 All E.R. 632; [1999] 2 F.L.R. 763; [1999] 2 F.C.R. 481; [1999] Fam. Law 617; (1999) 96(27) L.S.G. 34; (1999) 143 S.J.L.B. 190; Times, June 25, 1999; Official Transcript; HL

MH v GP (Child: Emigration)
[1995] 2 F.L.R. 106; [1995] 3 F.C.R. 35; [1995] Fam. Law 542; Fam Div

Tyler v Tyler
[1989] 2 F.L.R. 158; [1989] Fam. Law 316; (1989) 153 J.P.N. 820; Times, March 1, 1989; CA (Civ Div)

Lonslow v Hennig (formerly Lonslow)
[1986] 2 F.L.R. 378; [1986] Fam. Law 303; CA (Civ Div)

Chamberlain v De La Mare
(1983) 4 F.L.R. 434; (1983) 13 Fam. Law 15; CA (Civ Div)

Nash v Nash
[1973] 2 All E.R. 704; CA (Civ Div)

Poel v Poel
[1970] 1 W.L.R. 1469; (1970) 114 S.J. 720; CA (Civ Div)

J v C
[1970] A.C. 668; [1969] 2 W.L.R. 540; [1969] 1 All E.R. 788; (1969) 113 S.J. 164; HL

Ladd v Marshall
[1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745; (1954) 98 S.J. 870; CA