Mother granted permission to return with child to Tanzania

Children|April 25th 2014

A Tanzanian mother living in the UK has been granted permission to relocate back to her home country and take her child with her.

In Re N (Leave to remove from the jurisdiction), the mother sought permission over the father’s strong objections, following the breakdown of her marriage.

Judge Newton heard evidence from the mother, father, paternal grandparents and the child’s Cafcass guardian before coming to a decision. The guardian was in favour of permitting the child to be removed to Tanzania.

The father claimed the mother’s reason for the application was to cut all ties between the child and his paternal family.

Judge Newton found this argument unconvincing, saying “the arguments for granting leave to relocate are overwhelming”.

She said:-

“In Tanzania the mother would be returning to her place within a warm and loving family who will provide support, both practical and emotional, for her and C. This is a close family. She speaks to her mother every day and to her sister several times each week by Skype. The extended family, including aunts, uncles and cousins, live a few minutes away.”

The British father met the mother online before she came to the UK to study for a Master’s degree, when they began their relationship.

When she had completed her studies, the mother’s visa expired and she returned to Tanzania, where she was joined by the father.

Shortly thereafter C was born and the parents married in a civil ceremony.

The mother returned to the UK with in early 2011 after the father had secured a spousal visa for her and they lived together until the summer of 2012.

The marriage deteriorated shortly after a family trip to Tanzania in 2012, which the mother claimed was due to the father’s drug use.

Judge Newton described the circumstances surrounding the breakdown of the marriage as “really quite devastating for the mother”, noting:

“It was only following the revelation by the father in early September 2012 that he had recently used heroin and that he had used heroin in the past, that she discovered there was any hint of the father taking drugs.”

In her conclusion, Judge Newton said:

“I am satisfied that basically this is a good mother focused on her son’s welfare. She would be a good parent to C in the UK but she would be a better parent in Tanzania. She would not, in my judgment, have pursued this application for selfish motives if she genuinely felt that C’s welfare would be promoted by remaining in the UK.”

The law in this area is hotly debated and controversial. Critics argue it takes too much account of the impact on the would-be leaver (usually the mother) if permission is refused following the case of Payne v Payne (2001). The Judge stated the law in an easy to understand manner, explaining the principles in Payne and the differing positions of a child who had not previously been co-parented and one who had.

It is a judgement well worthwhile setting out in full as follows:-

“I have reminded myself of the paramountcy of the welfare of C and the welfare checklist at section 1(3) of the Children Act. I am acutely conscious that were I to grant the mother’s application, it would result in a significant interference with the Article 8 rights of the father and of C to respect for their family life which can only be justified by pressing concerns for the welfare of C. Any such interference must, of course, be reasonable, proportionate and in accordance with law.

I have been referred, inevitably, to the decision in Payne v Payne. It is apparent from that decision that the welfare of C is my paramount consideration but also that refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact deleteriously on the welfare of the dependent child. Therefore, the application to relocate will normally be granted unless the court concludes that it is incompatible with the welfare of the child. Having stressed that there is no legal presumption in favour of the reasonable proposal of the primary carer, Lord Justice Thorpe held this:

‘To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the        child’s welfare I would suggest the following discipline as a prelude to conclusion: Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.’

In her judgment the former President in Payne held as follows:

‘In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them:

(a) the welfare of the child is always paramount;

(b) there is no presumption created by section 13(1)(b) in favour of the applicant parent;

(c) the reasonable proposals of the parent with a residence order wishing to live abroad carry great weight;

(d) consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to end contact between the child and the other parent;

(e) the effect upon the applicant parent and the new family of the child of a refusal of leave is very important;

(f) the effect upon the child of the denial of contact with the other parent and in some cases his family is very important;

(g) the opportunity for continuing contact between the child and the parent left behind may be very significant.”

4. I am conscious that Payne has been the subject of much debate and, indeed trenchant criticism over the years. However, it is binding upon me.

5. Miss E has pointed to the decision of Lady Justice Black in K v K [2012] 2 FLR 880 and I accept entirely the proposition that the only true authoritative principle is that the welfare of the child is paramount in my decision-making. K v K does deal with a very different situation where the child was effectively co-parented before the application to remove from the jurisdiction.’ “

Author: Stowe Family Law

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