MH v GP (Child: Emigration)

JurisdictionEngland & Wales
Judgment Date1995
Date1995
CourtFamily Division

THORPE, J

Child – contact – application by father to vary contact with child from visiting to staying contact – child born as result of extra-marital sexual relationship between child's parents.

Child – removal from jurisdiction – application by mother for leave to remove child permanently from jurisdiction to New Zealand – application by father for prohibited steps order to prevent mother from removing child from jurisdiction.

In August 1988 the mother and father ("the parents") commenced an extra-marital relationship, as a result of which the father separated from his wife. In early 1989 the parents commenced cohabitation. On 2 January 1990 the mother gave birth to a baby boy ("the child").

By June 1990 a stormy relationship between the parents led to partial separation. Following separation the father applied to a magistrates' court for a contact order, a prohibited steps order, and a parental responsibility order. In April 1992 the justices granted the father contact with the child one weekend day every third weekend – the mother being present during the first half of the day. The father's application for a prohibited steps order was met by mother giving an undertaking not to depart from the jurisdiction without giving the father at least three months' notice of her intention. The parental responsibility application was withdrawn following a negative recommendation by a court welfare officer.

On 23 February 1993 the child's maternal grandfather died; and as a consequence the mother became the beneficiary of one-quarter of her father's estate.

In May 1993 the contact order was varied. The father was allowed to see the child every three weeks from 11 am to 4 pm and to take the child out for the day.

On 9 January 1994 the father applied to extend the visiting contact to one of staying contact (the father and his cohabitee lived in Dorset while the child and his mother lived in Gloucestershire). The father had already been granted staying contact with regard to another child (a half-sister of the child) who had been born within wedlock. That contact was one long weekend and staying contact during school holidays. The contact arrangements enabled both children to see each other.

On 31 March 1994 the father applied for a prohibited steps order to prevent the mother removing the child from the jurisdiction. That application had been precipitated by the mother's response to the father's contact application in which the mother stated that she wanted to emigrate with the child to New Zealand. The mother's intention had followed a visit to New Zealand in 1987–88.

On 8 August 1994 the mother applied for leave to remove the child permanently from

the jurisdiction. In October 1994, prior to the hearing, the mother had removed the child to New Zealand for one month.

Held – (1) The welfare of the child was the first and paramount consideration whether or not leave for permanent removal of a child from the jurisdiction could be granted. Leave would not be withheld unless the intentions of the child and those of the custodial parent were clearly shown to be incompatible. Such statement of principle created a presumption in favour of a reasonable application by a custodial parent. In deciding whether a reasonable application was or was not incompatible with the child's welfare, an assessment had to be made as to the importance of the relationship between the child and the non-custodial parent, not only as it was but also as it could develop. In determining such an assessment consideration had to be made as to the more realistic and more reasonable parent by assessing the weight of the present relationship and what development of that relationship would best promote the child's interests.

(2) In the circumstances the mother's adherence to the principles of individuality and idealism were areas of vulnerability which had to be compensated and safeguarded by the development of the child's relationship with his father. Further, although the mother accepted and honoured the court's contact orders and had been co-operative to the varying of contact between the father and the child, the mother's co-operation was always guarded and the mother paid lip service to the importance of maintaining the relationship between the father and the child. The conclusion reached by the court was that it was important for the child's future welfare that the relationship between the child and his father was maintained and developed. The reasonable proposal of the mother to remove the child permanently from the jurisdiction was incompatible with the child's long-term welfare.

(3) As the mother's application for leave to remove the child from the jurisdiction had failed, the father's application for a prohibited steps order could be adequately dealt with by the mother reaffirming the undertaking made to the justices in April 1992.

(4) The application for staying contact, albeit 10 months old, was not premature, was justified, and would be granted. It was right that contact be varied to include staying contact with the father as such a variation was a justifiable step forward in the child's long-term development. The mother had been too over protective of the child, an ordinary little boy, which had created a danger to the long-term development of the child as the child was in danger of developing into a mother's boy and of being isolated from other members of the family.

Statutory provisions referred to:

Children Act 1989, s 9.

Cases referred to in judgment:

Chamberlain v de la Mare (1983) 4 FLR 434.

Poel v Poel [1970] 1 WLR 1469; [1970] 3 All ER 659.

Timothy Coombe for the father.

Caroline Wright for the mother.

MR JUSTICE THORPE.

This is a series of applications in relation to a four-year-old boy, D, who was born on 2 January 1990. The parties to the application are respectively his father and his mother.

For the record, the applications which I decide are the father's application of 9

January 1994, which seeks to extend the...

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  • MK v CK
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 July 2011
    ...do so, since they may have been expressed from time to time in too rigid terms. The judgment of Thorpe J in MH v GP (Child: Emigration) [1995] 2 FLR 106 was the first time to my knowledge that the word 'presumption' had been used in the reported cases, and I would respectfully suggest that ......
  • Re W (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 30 March 2011
    ...so, since they may have been expressed from time to time in too rigid terms. The judgment of Thorpe J in M H v G P (Child: Emigration) [1995] 2 FLR 106 was the first time to my knowledge that the word "presumption" had been used in the reported cases, and I would respectfully suggest that i......
  • Payne v Payne
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 13 February 2001
    ...to apply this line of authority to a series of cases giving rise to differing facts and circumstances. We have been referred to MH v GP [1995] 2 FLR 106, Re H [1998] 1 FLR 848 and Re C [2000] 2 FLR 457. However in the first case I referred to the ratio in Chamberlain v de la Mare as creatin......
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