The mother had been given leave to take the child of the family out of the jurisdiction. The father sought leave to appeal.
Held: Ormrod LJ said: ‘It is always difficult in these cases when marriages break up where a wife who, as this one is, is very isolated in this country feels the need to return to her own family and her own country; and, although Mr Swift has argued persuasively for the test which was suggested in the case of Poel v Poel [1970] 1 WLR 1469, the test which is often put on the basis of whether it is reasonable for the mother to return to her own country with the child, I myself doubt whether it provides a satisfactory answer to this question. The fundamental question is what is in the best interest of the child; and once it has been decided with so young a child as this that there really is no option so far as care and control are concerned, then one has to look realistically at the mother’s position and ask oneself the question: where is she going to have the best chance of bringing up this child reasonably well? To that question the only possible answer in this case is Hong Kong. It is true that it means cutting the child off to a large extent – almost wholly perhaps – from the father; but that is one of the risks which have to be run in cases of this kind. If it is wholly unreasonable, as I think it is in this case, to require the mother to remain in England, assuming even the court ought to put her in the position of choosing between staying very unhappily and uncomfortably in England and going home to her own country, then I still think the answer is that where she can best bring up this child is the proper solution to this case.’
Judges:
Ormrod LJ
Citations:
[1979] 1 FLR 380
Jurisdiction:
England and Wales
Citing:
Cited – Poel v Poel CA 1970
The mother of a child of two and a half had obtained a custody order with weekly access given to the father. She wished to emigrate with her new husband and the expected child of that marriage to New Zealand. She applied to remove the child . .
Cited by:
Cited – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Lists of cited by and citing cases may be incomplete.
Children
Updated: 18 May 2022; Ref: scu.417789
