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22 JUL 2008

LEAVE TO REMOVE: Re B (Leave to Remove) [2008] EWCA Civ 1034

(Court of Appeal; Thorpe; Rix and Longmore LJJ; 22 July 2008)

The German mother was initially refused leave to remove the three children to Germany, notwithstanding that she was suffering from reactive depression, on the basis that she had not investigated the practicalities of the move and that she was unlikely to allow father real contact following such a move. Later the mother renewed her application; in the interim contact arrangements had improved. An expert who had produced a report in relation to the father's residence application, but had not had more recent contact with the family, gave oral evidence at the leave to remove hearing in which she went beyond her original report, giving strong evidence that the removal would have a very negative impact on the children and would severely damage their relationship with the father. The judge refused leave, concluding that, although the mother's depressive state was likely to be exacerbated by a refusal, relocation would effectively alienate the children from the father.

Criticisms could be made of the expert's evidence on the newly arisen issue of relocation, but the mother's counsel had not challenged the evidence at the time and the judge had been entitled to place reliance on it. The judge had been entitled to reach her very clear findings as to the fatal effect of relocation on the children's relationship with the father and the mother's appeal was dismissed.

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