Relocation, relocation...

26 July 2011

The recent case of MK v CK has marked a change in the treatment of “leave to remove” or relocation cases. The father successfully appealed against the decision allowing the mother permission to relocate to Canada with the parties’ two children.

In the Judgment, when referring to the leading case of Payne v Payne, the Court of Appeal suggested that the guidance in Payne (which gives weight to the distress that is likely to be caused to the mother by a refusal of permission to relocate) should be treated as guidance rather than (as has been the case previously) a “principle of law from which no departure is permitted”. The mother’s distress should be treated as one of the factors of the case and not elevated above other factors affecting the child’s welfare.

One particular point to note in the case of MK v CK is that the father played a significant role in the children’s lives (there was a shared care arrangement in place whereby the father cared for the children for approximately 35% of the time). This undoubtedly influenced the Court of Appeal’s decision. It will usually follow that, the greater the respondent parent’s (usually the father) role in the children’s lives, the greater the damage caused to the children by being separated from that parent if relocation is permitted. We may therefore see a change in how relocation cases are dealt with where the children are cared for more or less equally by both parents.

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On February 24th 2013 Bruno D'Itri commented:

The contradictory pronouncements of Sir Nicholas Wall on Payne v Payne (2001) are detailed in the comments section of the following link:

Also included are the views on Payne v Payne of Lord McNally, the Government Minister responsible for Relocation Law, and of Sir David Norgrove, Chairman of the Family Justice Review.

Now that Sir Nicholas Wall has retired, perhaps he might now give the legal community a full explanation of his stance on Relocation Law.

The hundreds of ‘non-resident’ parents who had enjoyed a ‘shared parenting regime’, but whose children were, nevertheless, removed overseas between February 2010 and July 2011, would be very grateful.

Bruno D’Itri

On January 27th 2013 Bruno D'Itri commented:

An excellent article which exposes Sir Nicholas Wall's seemingly confused and contradictory stance on Payne v Payne:

A frank and comprehensive explanation from Wall would have been of great assistance to the legal fraternity. It's never too late, Nicholas!

Bruno D'Itri

On December 11th 2012 Bruno D'Itri commented:

In order to understand why Payne v Payne (2001) was reviewed in Re MK (despite Sir Nicholas Wall stating that it should remain in place just two months earlier) see:

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