When the parent with a Residence Order in favour of the children wishes to remove the children of the family out of the jurisdiction of England and Wales, he or she must first seek the non-resident parent’s consent or, in the absence of such consent, must obtain permission from the court.

When considering such an application, the court must follow the guidelines set out in the case of Payne v Payne (2001):

1.The welfare of the child is always paramount;
2.There is no presumption created in favour of the applicant parent;
3.The reasonable proposals of the parent with a residence order wishing to live abroad will carry great weight;
4.The proposals have to be scrutinised with care and the court must be satisfied that there is a genuine motivation for the move and not the intention to bring contact with the non-resident parent to an end;
5.The effect on the applicant parent of a refusal to leave is very important;
6.The effect on the child/children of the denial of contact with the non-resident parent is important;
7.The opportunity for continuing contact between the child/children and the non-resident parent may be very significant.

The latest case to put these principles to the test is Re W (2011). Initially, the court refused the mother, who was an Australian national with a Residence Order in favour of the children, permission to move to Australia with her two children aged 12 and 8. The mother appealed.

The parents had not been married or lived together as a couple. The children had been in the mother's sole care for the majority of their lives and the father had not had regular contact despite living close by to the mother and children. He had never applied for a contact order or indeed sought to obtain parental responsibility for the children although he did start to see the children more regularly during the court proceedings.

The judge initially refused the mother permission to relocate on the basis that the children's relationships with their father needed to continue to grow and develop. The mother appealed.The Court of Appeal was clear that, in carrying out the necessary balancing exercise, the lower court had got it wrong. The Court of Appeal said that the mother’s plans were clearly in the best interests of the children and granted her permission to relocate to Australia with both children.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.