Leave to Remove

From FamilyLawWiki

REMOVAL FROM THE JURISDICTION / LEAVE TO REMOVE

Removal from the jurisdiction / Leave to remove is the area in family that is more firmly rooted in 1970s mentality than anything else. Two precedents now define this area of family law. Two appeal court judges have shaped the criteria according to which a person with parental responsibility is granted leave to remove his/her children from this jurisdiction: Butler-Sloss LJ, the former president of the Family Division, and Thorpe LJ, now responsible for international aspects in the Family Division.

The 1970s case that set the scene was:

Poel v Poel [1970] 1 WLR 1469, sub nom P (LM) (Otherwise E) v P (GE) [1970] 3 All ER 659, CA

The post-Human Rights Act [HRA] case references are:

1. Payne v Payne [2001] EWCA Civ 166, [2001] 2 WLR 1826, [2001] 1 FLR 1052, [2001] UKHRR 484, CA

2. RE B (REMOVAL FROM JURISDICTION); RE S (REMOVAL FROM JURISDICTION) [2003] EWCA Civ 114, CA

The criteria that are used by the courts in England and Wales to determine whether or not Leave to Remove is to be granted.

A recent case, RE G (REMOVAL FROM JURISDICTION) [2005] EWCA Civ 170, CA, is a perfect illustration of how far the Court of Appeal can drive the "distress argument", i.e., the argument that seems so innocuously summarised as the third criterion in Thorpe LJ's list (see link above): "(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?" Re G must be savoured in full if one wants to appreciate the extent to which Poel v Poel is now clad in iron.