Practical advice for athletes resolving child arrangement disputes: Part 2 - Applications for leave to remove

This two-part article provides practical advice to advisors of top-flight athletes who are faced with resolving potentially complicated and emotive issues concerning the residency of an athlete’s children should the athlete wish to relocate overseas from England or Wales.

Part 1, available here, explained the key general concepts of child arrangement disputes including “parental responsibility”, “habitual residence” and the extent of the Court’s jurisdiction. Part 2 below moves on to explain the Court process should an application (known as an ‘application for leave to remove’) prove necessary. The concepts discussed in Part 1 are relevant to Part 2, so we suggest reading Part 1 first if you haven’t already.

In Part 1, we also identified two hypothetical examples that we shall refer to again below. The first is of an overseas football player who moves to England with his wife and two children to play in the Premier League and, while doing so, separates from his wife. She wishes to return home with the children, but the player, who has a number of years left to run on his contract, wishes to stay in England with the children, where he believes they have a better quality of life.

The second is a divorced English professional rugby player who wants to move to France to take advantage of better playing opportunities and financial incentives. He wishes to take his two children with him, but their mother refuses, wanting them to stay in in England where they have grown up. In both cases we ask how the disputes would be resolved under English law? We also established in Part 1 that the same legal processes, laws and statutes apply equally to each example provided the child is found to be “habitually resident” in England or Wales.

Negotiated solutions

If adults with parental responsibility cannot agree on where a child should live, then there is a dispute. Such disputes can sometimes be resolved without an application to the Courts, for example by arranging a mediation. In reality, though, the dispute will often end up in Court, as there is little for the parties to bargain over to try to reach an acceptable solution. It is essentially a binary issue - the child either stays or goes.

In a small number of cases a parent may agree for the child to go if suitable contact arrangements can be put in place for them to see the child once they have moved.

Application to the Courts

If a negotiated solution is not possible, then an application to the Courts is necessary. This is called an ‘application for leave to remove’. Due to the delays inherent in the English Court system, advisors should consider making such an application as soon as possible if their athlete wishes to move with the children (like our rugby player).

Of course if the athlete is defending the application and does not want the children to move with their mother (like our football player), the onus is on the other party to bring the matter before the Court as they cannot move without the other’s permission.

How will a court decide whether to grant an order allowing a parent to permanently relocate with the children?

The relevant legal test for such an application has developed through case law over time.

The leading judgment for over 20 years was handed down in Payne v Payne.¹ In this case, the Court of Appeal set down a number of principles for how an application for leave to remove should be dealt with by the court, which included,

• the welfare of the child is paramount;
• no presumption in favour of the applicant; and (importantly),
• that the court would undertake an assessment as to how refusing the application would impact on the parent wishing to relocate/return home.

The thinking behind the third principle is that a parent wishing to move away from this country to return home, or to move to an entirely new country and start a new life abroad with their children would be so devastated by not being permitted to go, this would impact on their ability to care for the children resulting in a detrimental impact on their welfare.

This approach, however, was troublesome to practitioners and led to a perception held by many that it was becoming too easy to make a successful application, particularly for mothers returning with their children to the country where they had been born.

Case law has now moved on, and cases such as MK v CK² have established that the only principle the court must apply is that the child’s welfare is paramount, and that all of other principles set out in Payne are guidance only. When considering the welfare of the child, the court will have regard to the following factors:³

1. the ascertainable wishes and feelings of the child;
2. his physical, emotional and educational needs;
3. the likely effect on him of any change in circumstances;
4. his age, sex, background and any characteristics which the court considers relevant;
5. any harm which he has suffered or is at risk of suffering;
6. how capable each of his parents is of meeting his needs; and
7. the range of powers available to the court.

The weight given to each of these factors will depend on the particular facts and circumstances of the individual case. In a hypothetical situation where a child has a disability or specific learning difficulties, for example, greater weight will be given to their physical, emotional and education needs and the capability of each parent to meet those needs than other facts.

The wishes of the child

The wishes and feelings of the child will become more relevant and determinative as the child gets older because section 1(3)(a) of the Children Act 1989 provides the court will have regard to the child’s wishes and feelings in light of the child’s age and understanding. Consequently, the older and more mature a child is, the more weight will be given to their wishes and feelings.⁴ If, for example, a 14-year-old child of a player wants to move abroad with him, it is likely the court will allow them to go. If, however, the child is 8 years old and expresses the same wishes, it is less likely to influence the court.