The mother wanted to take the two infant children to New York with her new husband. The father resisted. At first instance, Balcombe J had considered both Poel and Nash, but said that without wishing to be an iconoclast, he would simply apply the criteria from the 1971 Act and follow the interests of the chilren.
Held: The mother’s appeal succeeded. Balcombe J had misdirected himself in questioning whether the decisions in Poel and Nash were consistent with the statute. Ormrod LJ emphasised that the court in Poel had not weighed the interests of the adults against the interests of the children but rather had weighed the effect on the children of imposing unreasonable restraints on the adults.
After discussing Moodey v Field, he continued: ‘The reason why the court should not interfere with the reasonable decision of the custodial parent, assuming, as this case does, that the custodial parent is still going to be responsible for the children, is, as I have said, the almost inevitable bitterness which such an interference by the court is likely to produce. Consequently, in ordinary sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary. That I believe to be the correct approach.’
Griffiths LJ said: ‘The welfare of young children is best served by bringing them up in a happy, secure family atmosphere. When, after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family and it is the happiness and security of that family on which their welfare will depend. However painful it may be for the other parent that parent has got to grasp and appreciate that fact. If a step-father, for the purposes of his career, is required to live elsewhere the natural thing would be that he will wish to take his family, which now includes his step-children, with him, and if the court refuses to allow him to take the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be very damaging to those step-children or alternatively he may have to throw up his career prospects and remaining this country. If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects. If that happens it must reflect upon the happiness and possibly even the stability of this second marriage. It is to that effect that the court was pointing in the decisions of Poel v Poel and Nash v Nash and it was stressing that it was a factor that had to be given great weight when weighing up the various factors that arise when a judge has to decide whether or not to give leave to take children out of the jurisdiction.’
Judges:
Ormrod LJ, Griffiths LJ
Citations:
[1983] 4 FLR 434
Statutes:
Guardianship of Minors Act 1971 1
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 – Nash v Nash CA 1973
Davies LJ said: ‘But I emphasise once more that when one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.’ . .
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.
Cited – Lonslow v Hennig CA 1986
The mother sought leave to remove the children of the family against the father’s wishes. She wanted to move to New Zealand. The judge at first instance had refused her application. She appealed.
Held: The appeal succeeded. Though the first . .
Cited – Belton v Belton CA 1987
The mother appealed against refusal of leave to remove her children from the UK on emigrating to New Zealand.
Held: The appeal succeeded.
Purchas LJ said that: ‘in carrying out the exercise of assessing what was in the interest of A as . .
Cited – In Re C (leave to remove from the jurisdiction) CA 2000
The court heard an appeal from an order made on an application for leave to remove a child from the jurisdiction. . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 18 May 2022; Ref: scu.417791