Removing children from the jurisdiction

In re v (children) (removal from jurisdiction) In re S (child) (removal from jurisdiction) CA TLR 29 August

Where a child’s mother proposes to care for a child within a new family, her attachment and commitment to a man whose employment required him to live in another jurisdiction might be decisive in determining an application to relocate outside the jurisdiction. If the Court frustrated a natural emigration it jeopardised the prospects of the new family’s survival or blighted its potential for fulfilment and happiness. That was manifestly contrary to the welfare of any child of that family The Court s powers to ensure for children continued contact with both their parents were necessarily circumscribe. The father might take employment abroad or, having married a woman whose every connection was with another jurisdiction, accompany her abroad. The Court could not survey or control the consequential loss or diminution in his contact with the children of the prior relationship. Those were the tides of chance and life and in the exercise of its paternalistic jurisdiction it was important that the Court should recognise the force of those movements and not frustrate them unless they were shown to be contrary to the welfare of the child. In Re B, the mother wished to move to South Africa with anew partner, a successful and affluent South African businessman, in a relationship which the trial judge had found to be untried and untested and the mother to be mercurial, so that the proposed arrangement was not realistic from the children’s viewpoint. In Re S, the mother had, since her divorce in April 2002, met a Filipino citizen who had the right of residence in Australia where they planned to move with the child. In both cases the Court of Appeal reversed the trial judges’ refusal of permission.