Re X and Y (leave to remove from jurisdiction: no order principle)
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 2000 |
| Court | Family Division |
Children – Application to remove children from jurisdiction – Relationship between parents coming to an end – Mother seeking to remove children from jurisdiction – Father seeking parental responsibility and contact orders – Whether leave to remove children from jurisdiction should be given – Factors to be taken into account – Children Act 1989, s 1(5).
The two children concerned in the proceedings were X, a boy aged six years, and his sister Y aged three. Their parents who had never married were both from another European country but the father had been educated in England and had lived and worked there since that time. The mother had spent most of her life in her country of birth until she met the father in London. Both children were born in England, the father was acknowledged on both birth certificates and the children bore his surname. The parents’ relationship terminated in November 1999 when the father left the family home, while the mother and children remained. The father made a number of separate applications to the court seeking variously parental responsibility orders, a contact order and residence orders. The mother sought the leave of the court to remove the children permanently from the jurisdiction and to return to her country of origin. The father contended that the children’s interests would best be served if they continued to reside in the former family home in London. The father advised that if the mother remained he would not pursue his residence application and as the mother stated that she would stay with the children if her application to remove them was unsuccessful, the residence application was not considered at the hearing. The mother did not dispute that contact should take place between the children and their father but argued that the contact should be supervised as she alleged that the father had sexually abused the children. As a consequence there were two main issues before the court: (1) whether or not the father had sexually abused either of the children, which was relevant to the father’s applications for parental responsibility and unsupervised contact; and (2) whether the mother was entitled to remove the children from the jurisdiction. The parts of the judgment dealing with issue (1) are not reported. Arguments were heard in relation to the general significance of the ‘no order’ principle embodied in s 1(5) of the Children Act 1989 and its application to the present case.
Held – When hearing an application for leave to remove a child from the jurisdiction it was the duty of the court to apply the paramountcy principle in s 1(1)(a) of the Children Act 1989 and to consider whether refraining from making an order would be better for the child in accordance with s 1(5), applying the
welfare checklist in s 1(3) in the process. Authoritative guidance had been provided by the House of Lords as to the meaning and effect of s 1(5) of the Act with the result that the burden was on the party applying for an order to make out a positive case that on the balance of probabilities it was in the best interests of the child that an order should be made. Further the question had to be examined from the point of view of the child and, while no particular factor would give rise to a presumption in favour of the making of an order, the weight given to any relevant factor would depend upon the facts of the particular case. As a consequence it was best to avoid all reference to starting points or presumptions and unless there was evidence to establish that the order would lead to an improvement in the child’s welfare, the order should not be made. Moreover, although the wishes of the custodial parent were always a relevant factor and carried great weight, the application would be determined in accordance with the paramount interests of the child and not the wishes of the custodial parent, however reasonable, judged from the perspective of the parent, those wishes might be. In a successful application the applicant parent had to establish that, having regard to the medium to long-term welfare of the child, and after applying the welfare checklist, the child would be better off living abroad. In the present case the mother had failed to make out a case that the children had been sexually abused and the court accepted the father’s emphatic denial of the allegations. Accordingly, the father’s application for a parental responsibility order would be successful. However, it was in the children’s interest that the mother be given leave to take them out of the jurisdiction with her although the father should be permitted to have liberal unsupervised contact, including staying contact, with the children both in England and in the mother’s home country. Accordingly, the mother’s application for leave to remove the children from the jurisdiction would be successful.
Per curiam. The principles to be distilled from Dawson v Wearmouth are not confined to change of name cases but are of general application. They apply equally, for example, to applications for leave to remove a child permanently from the jurisdiction and are binding upon all inferior courts. In the future, applications for leave to remove a child from the jurisdiction should be approached from the viewpoint of those principles.
Cases referred to in judgmentA v Liverpool City Council [1982] AC 363, [1981] 2 All ER 385, [1981] 2 WLR 948, [1981] 2 FLR 222, HL.
B v B (grandparent: residence order) [1993] 1 FCR 211, [1992] 2 FLR 327, [1992] Fam Law 490.
Baxter v Baxter [1948] AC 274, [1947] 2 All ER 886, [1948] LJR 479, HL.
Belton v Belton [1987] 2 FLR 343, [1987] Fam Law 344, CA.
Bevan v Bevan (1974) 4 Fam Law 126.
C (a child) (HIV testing), Re[1999] 3 FCR 289, [2000] Fam 48, [2000] 2 WLR 270.
C (leave to remove from jurisdiction), Re[2000] 2 FCR 40, [2000] 2 FLR 457, CA.
Cackett (orse Trice) v Cackett [1950] P 253, [1950] 1 All ER 677, 94 Sol Jo 256, 66 (Pt 1) TLR 723.
Chamberlain v de la Mare (1983) 4 FLR 434, CA.
Cowen v Cowen [1946] P 36, [1945] 2 All ER 197, 61 TLR 525, CA.
D v A (1845) 1 Rob Ecc 279.
Dawson v Wearmouth[1998] 1 FCR 31, [1998] Fam 75, CA; affd[1999] 1 FCR 625, [1999] 2 AC 308, [1999] 2 All ER 353, [1999] 2 WLR 960, [1999] 1 FLR 1167, [1999] Fam Law 378, HL.
DH (a minor) (care proceedings: evidence and orders), Re[1994] 2 FCR 3, 22 BMLR 146; sub nom DH (a minor) (child abuse), Re [1994] 1 FLR 679, [1994] Fam Law 433.
F (a ward) (leave to remove ward out of the jurisdiction), Re [1988] 2 FLR 116, [1988] Fam Law 295, CA.
F v F [1902] 1 Ch 688, 71 LJ Ch 415.
G-A (a child) (removal from jurisdiction: human rights), Re[2001] 1 FCR 43; sub nom A (permission to remove child from jurisdiction: human rights), Re [2000] 2 FLR 225, CA.
H (application to remove from jurisdiction), Re[1999] 2 FCR 34, [1998] 1 FLR 848, [1998] Fam Law 390, CA.
H (minors) (contact: domestic violence), Re[1998] 3 FCR 385, [1998] 2 FLR 42, [1998] Fam Law 392, CA.
H v H (residence order: leave to remove from jurisdiction) [1995] 2 FCR 469, [1995] 1 FLR 529n, [1995] Fam Law 238, CA.
Harris v Pinnington[1995] 3 FCR 35; sub nom MH v GP (child: emigration) [1995] 2 FLR 106, [1995] Fam Law 542.
J v C [1970] AC 668, [1969] 1 All ER 788, [1969] 2 WLR 540, HL.
K (application to remove children from jurisdiction), Re[1999] 2 FCR 410, [1998] 2 FLR 1006, [1998] Fam Law 584.
K (supervision orders), Re[1999] 1 FCR 337, [1999] 2 FLR 303, [1999] Fam Law 370.
K v K (removal of child from jurisdiction) [1992] 2 FCR 161, [1992] 2 FLR 98, [1992] Fam Law 240.
L (a child) (contact: domestic violence), Re[2000] 2 FCR 404, [2000] 4 All ER 609, [2001] 2 WLR 339, [2000] 2 FLR 334, [2000] Fam Law 603, CA.
Lonslow v Hennig [1986] 2 FLR 378, [1986] Fam Law 303.
M (leave to remove child from jurisdiction), Re[1999] 3 FCR 708, [1999] 2 FLR 334, [1999] Fam Law 377.
M v A (removal of children from jurisdiction) [1994] 2 FCR 57; sub nom M v A (wardship: removal from jurisdiction) [1993] 2 FLR 715, [1993] Fam Law 625.
M v M (minors) (removal from jurisdiction) [1992] 1 FCR 422, [1992] 2 FLR 303, [1992] Fam Law 291, CA.
M v M (removal from jurisdiction) [1993] 1 FCR 5, [1993] Fam Law 396, CA.
McGrath (infants), Re [1893] 1 Ch 143.
Moodey v Field [1981] CA Transcript 71.
Nash v Nash [1973] 2 All ER 704, CA.
O (minors) (care or supervision order), Re[1997] 2 FCR 17, [1996] 2 FLR 755, [1997] Fam Law 87.
Oxfordshire CC v B[1998] 3 FCR 521; sub nom Oxfordshire CC v L (care or supervision order) [1998] 1 FLR 70, [1998] Fam Law 22.
P (L M) (orse E) v P (G E) [1970] 3 All ER 659; sub nom Poel v Poel [1970] 1 WLR 1469, CA.
Porchetta v Porchetta 1986 SLT 105, Scot HL.
S (removal from jurisdiction), Re [1999] 1 FLR 850, [1999] Fam Law 219.
S v M (access order) [1997] 1 FLR 980; sub nom Sanderson v McManus 1997 SC (HL) 55, Scot HL; affg [1996] SLT 750.
T (a minor) (contact after adoption), Re[1995] 2 FCR 537, [1995] 2 FLR 251, [1995] Fam Law 536, CA.
T (a minor) (order as to residence), Re[1996] 3 FCR 97; sub nom T (removal from jurisdiction), Re [1996] 2 FLR 352, [1996] Fam Law 463 [1996], CA.
Tyler v Tyler [1990] FCR 22, [1989] 2 FLR 158, [1999] Fam Law 219,CA.
W, A, B (change of name), Re[1999] 3 FCR 337, [2000] 2 WLR 258, [1999] 2 FLR 930, [1999] Fam Law 688, CA.
Ward v Laverty [1925] AC 101, [1924] All ER Rep 319, HL.
White v White[2000] 3 FCR 555, [2001] 1 All ER 1, [2000] 3 WLR 1571, [2000] 2 FLR 981, HL.
Young v Bristol Aeroplane Co Ltd [1944] KB 718, [1944] 2 All ER 293, CA; affd [1946] AC 163, [1946] 1 All ER 98, 62 TLR 99, HL.
ApplicationsThe father applied variously for residence, contact and parental responsibility orders with respect to the two children of the relationship. The mother applied for leave to remove the children from the jurisdiction to her country of origin. The facts are set out in the judgment. The judgment was given in chambers but an abbreviated version is published with the leave of the judge.
Timothy Bishop (instructed by The Family Law Consortium) for the mother.
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