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Leave To Remove

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Re AR (A Child: Relocation) [2010] EWHC 1346

This is often quoted as the case which confirms judicial unhappiness with the current Payne V Payne discipline in deciding leave to remove cases.

Clearly from the beginning the father was going to be successful on the facts in any event. The mother wish to emigrate to France following a similar application made a couple of years before which she did not take up. That fact is the Holy Grail of leave to remove law, the actual rather than theoretical assessment of what happens when an applicant remains in the country after leave to remove. In this case even though she had the ability to go to France 2 years ago she was obviously not "utterly devastated" (as the term is used) that she could not stay in this country. Instead after she was given permission to emigrate, she went to France temporarily, having expressed in decision about doing so and then returned to the UK to study and to work, not even returning to France for a holiday, causing the child a chaotic upbringing at that point. Hardly the actions of a mother but could not cope with living in the UK.

In arguing against the fairness to the child of Payne V Payne in my view the judge falls into some of the same traps that other critics do. The way to undermine Payne V Payne is to adopt a psychologically strategic approach not seek to undermine the law which ultimately can be argued to be childcentric as the paramountcy principle is accepted by each side-just whether the maternal distress at being refused is given too much significance. For example in stating that the international consensus on leave to remove in the Washington declaration relegated the maternal distress to the 8th item is to ignore the clear wording of the declaration says that the factors which should be bought into account in either granting or refusing leave to remove are "listed in no order of priority".

Re D (Children) [2010] EWCA Civ 50: Leave to Remov...
Re (A Child) [2010] EWCA Civ 1137: Leave to Remove...

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