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19 DEC 2006

LEAVE TO REMOVE: Re J (Leave to Remove) [2006] EWCA Civ 1897

(Court of Appeal; Thorpe, Carnwath and Wall LJJ; 19 December 2006)

The two older children, aged 15 and 11, were refusing any contact with the mother, and living with the father. The younger child, aged 6, was living with the mother and having frequent contact with the father and the elder children. In the course of cross-residence order applications by the parents the father made an urgent application for leave to remove the two elder children to Bulgaria. The father presented himself as in desperate financial straits, and as unemployed; he claimed to have been offered employment in Bulgaria. The judge, noting that unless the father was given permission, the family would become dependent on the state, granted permission to relocate to Bulgaria with the two children. The mother appealed, arguing that the father had failed to establish that practical arrangements for home, school and employment had been made.

In the circumstances of this unusual case, in which the judge ultimately had to decide between a mother's proposals for a residence order to be implemented in this jurisdiction and a father's residence order application to be implemented in another state, the discipline suggested in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052, hardly applied. Further, there was the extraordinary and driving consideration in this case that a sound future for the family could be achieved only by the father recovering an earning capacity in some other economy. The judge had been perfectly right to give great weight to the practicalities.

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