W (Children) [2011] EWCA Civ 345: leave to remove

This case is important important for a number of reasons.

Lord Justice Wall in his new role as President of the Family Division felt it necessary to clarify statements attributed to him by critics of leave to remove following his judgement in Re D (Children) [2010] EWCA Civ 50 which he felt had been distorted into a call for an immediate change in the Payne V Payne test.

It re-emphasised the importance for the respondent parent to build a case rather than rely upon his wish for or the importance of his continuing contact which was a given.

Restates the principle that if an appeal is allowed, the Court of Appeal may in certain circumstances substitute its decision rather than sending the case for a retrial. Consequently respondents to leave to remove applications must ensure they treat the first trial as being their only chance to case build around a core strategy, not run their case in a stereotypical way such as with evidential and other checklists, introduce research on the importance of a 2 parent family to the child or seek to persuade either the trial judge or the Court of Appeal to change the law.

It restates the principle that whatever nuances in describing the factors to be taken into account by the judiciary in deciding leave to remove cases and ranking their priority, the best interest of the child are paramount.   Maternal distress and paternal contact are both factors.

Those critics of Payne V Payne who have focused on battling through for a change in law on the basis of the head on collision between maternal distress and the 2 parents are better than one argument will need to rely upon their lobbying activities as to attack the general principle of the distress argument is (and indeed has always been) pointless.

Although the President of the Family Division was obviously aware that this was somewhat of a test case because it followed the furore of criticism of leave to remove law following the misinterpretation of his supposed call for a change in law in Re D (Children) [2010] EWCA Civ 50 the fact that the children wanted to relocate meant that despite the case being heavily laden with the maternal distress argument versus the two-parents are better than one argument it cannot be regarded as a pure case in that regard. Whatever the wishes of the parent left behind, the wishes of the children to relocate if they are sufficiently mature to understand the change it will involve have always been regarded as important. There is also little doubt that

- the mother's case that the children had suffered harm due to the father's alcoholism and possible recreational drug use as well as his lifestyle, he had very little visiting contact with the children prior to the litigation, did not have parental responsibility and until shortly before the hearing lived in his van which he could not sleep in due to a lack of planning permission and did not have a residential address at the date of the hearing,

- the mother had been reported by the health visitor after the birth of her eldest child as living in a ramshackle converted bus with no facilities and charitable organisations funding essential domestic items

- the children were keen on relocating to Australia, citing as a reason the maternal extended family in Australia

- the father's relationship with the children was newly gained

would have played on the Court of Appeals mind in deciding not to use that case, whatever their personal views, to further the discussion on the question of whether Payne V Payne was primary carer centric or childcentric in its approach.

Whilst not advocating a fact-finding hearing analysing all the inevitable parental conflicts in the past the President did emphasise the need to give due consideration to important historic events in an overall consideration of the case.

It is clear from this case that the paramountcy principle of what is in the child's best interests on a leave to remove is the most important. It is also clear that each case is fact specific and the court should analyse previous conduct of the parties in assessing such a case. That means that cases need to be factually and psychologically presented in the most appropriate way particularly in order to combat the psychologically based distress argument which is confirmed as extremely important in deciding these cases and favours the applicant parent-usually the mother in their wish to emigrate.

Through its unique joint legal and psychological approach skill set Gregorian Emerson are best placed to provide such advice and representation.