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28 JAN 2009

LEAVE TO REMOVE: Re W (Leave to Remove) [2009] EWCA Civ 160

(Court of Appeal; Thorpe, Wall and Aikens LJJ; 28 January 2009)

The judge refused the mother permission to relocate to New Zealand with the children, aged 10 and 5. The mother's new partner, with whom she had a young child, had obtained work in New Zealand, and claimed that he was unable to obtain work within the UK. Some time earlier the mother and her new partner had moved from Shropshire to Norfolk in order to assist the new partner to find work, but this move had not been successful. There had been earlier difficulties over contact, and the move within the jurisdiction had made contact more difficult, but contact was taking place. The mother claimed that she was taking medication for depression, and that the effect on her of a refusal of leave would be 'devastating'. The new partner claimed that would go to New Zealand alone if necessary. The judge formed an unfavourable impression of both the mother and her new partner, and formed a favourable impression of the father. The judge considered that although the application was a genuine one, it would be refused for a variety of reasons, including that (i) the mother would not be emotionally damaged by a refusal (there was no medical evidence that the mother would suffer more than disappointment); (ii) ties with New Zealand were slim; (iii) the new partner could find work in the UK if he made more effort; (iv) there were doubts as to whether contact would be maintained given the real hostility between the parents; (v) the children's views in favour of the move were of limited value (being based on a holiday experience of New Zealand); and (vi) the new partner's attitude that he would go anyway suggested a lack of commitment to family life.

The judge's decision was one that had been entitled to reach. The impression that the witnesses had made on the judge had been crucial.

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