Re (A Child) [2010] EWCA Civ 1137: Leave to Remove/International Relocation

This was a full appeal hearing by a father who had been unsuccessful in opposing the applicant mother's relocation application to Australia. This case is important because it looks at the effect of whether due process evidentially had been respected. There had been no CAFCASS report and the father alleged the mothers mental health had not been so serious as to persuade him from making an application to remove the child from mother’s care.

The Court of Appeal held that there was no absolute obligation for there to be a CAFCASS report particularly where as in this case the child was too young to express their own wishes and there was no dispute about the good quality of the relationship between father and child.

It is clear that in this case the very real mental health case history of the mother was not raised early enough, in enough detail or with sufficient medical evidence to convince the Court of Appeal that the father had a real concern. Expert advice from his solicitors was required to set out the context, reasons, diagnosis prognosis, and effect on the mother's parenting decision-making.

This case is also important since it acts as a reminder that once leave to remove permission has been given, the English court has no control over the enforceability of direct and indirect contact. Specific legal advice needs to be obtained in the country of proposed immigration about local contact as that is the best form of security for the unsuccessful parent left behind.

Although, a full scale discussion about the fairness of Payne V Payne was not undertaken, of great significance is the fact that it makes it clear that the general approach of the critics of adducing vast amounts of research evidence non-specific to the facts of the case showing 2 parents are better than one and arguing this should have priority over the maternal distress argument is pointless. It is not the absence of any conflicting specific expert evidence confirming the maternal distress argument which is the issue but rather the fact that the courts already understand the potentially self-serving nature of the utter devastation expressed by the applicant when cross-examined about the effect of their application to emigrate being refused and therefore look to the circumstances of the case to gauge how much disappointment would be suffered. That means that the proper presentation of the facts of the case - and not in a stereotypical one-dimensional way of allegation and counterallegation-is vital.