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Leave to remove: Mother granted leave to permanently remove children to Australia

In the recent case of Re TC and JC (Children: Relocation) [2013] EWHC 292 (Fam), the mother was an Australian citizen and the father was a British citizen, but he held an Australian visa for permanent residency.

The parties originally met in Australia in 2001, married in April 2006 and moved to England in 2010. The parties had two children together. The mother subsequently became unhappy and the parties’ marriage broke down. In May 2011, she abducted the children to Australia, at which time they were aged 3 ½ and 2. Lengthy proceedings under the Hague Convention were brought in Australia and the children were returned to the UK in August 2012.

The mother applied in the UK for leave to remove the children to Australia and the application was heard in February 2013. Before the hearing, the parties took the unusual step of agreeing that, wherever the court decided the children should live, the unsuccessful parent would go to live in that jurisdiction. The court had appointed an experienced CAFCASS officer but they felt unable to make a clear recommendation.

The Judge considered the principles established by the courts in relocation cases and also considered the recent judgment in Kacem v Bashir [2010] NZSC 112 by the New Zealand Supreme Court. The judge went on to look at the circumstances of the case. He found that the mother would be likely to suffer more difficulty in coming to the UK than the father would in going to Australia. The mother would also have the difficulty of applying for immigration status and negotiating the “immigration labyrinth” for up to a year. He also concluded that the problem of creating a significant geographical distance between the children and the father by allowing the relocation was not the case here as the father would relocate to Australia. He therefore considered that the impact of refusing the mother permission to remove the children would bear more heavily on her than granting the application would bear upon the father.

The mother was granted leave to relocate with the children to Australia during the forthcoming school holidays and the court ordered that the parties shall have shared residence of the children once in Australia with their time divided equally.

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