Practical advice for athletes resolving child arrangement disputes: Part 2 - Applications for leave to removeJosh Green
This two-part article provides practical advice to advisors of top-flight athletes who are faced with resolving potentially complicated and emotive issues concerning the residency of an athlete’s children should the athlete wish to relocate overseas from England or Wales.
Part 1, available here, explained the key general concepts of child arrangement disputes including “parental responsibility”, “habitual residence” and the extent of the Court’s jurisdiction. Part 2 below moves on to explain the Court process should an application (known as an ‘application for leave to remove’) prove necessary. The concepts discussed in Part 1 are relevant to Part 2, so we suggest reading Part 1 first if you haven’t already.
In Part 1, we also identified two hypothetical examples that we shall refer to again below. The first is of an overseas football player who moves to England with his wife and two children to play in the Premier League and, while doing so, separates from his wife. She wishes to return home with the children, but the player, who has a number of years left to run on his contract, wishes to stay in England with the children, where he believes they have a better quality of life.
The second is a divorced English professional rugby player who wants to move to France to take advantage of better playing opportunities and financial incentives. He wishes to take his two children with him, but their mother refuses, wanting them to stay in in England where they have grown up. In both cases we ask how the disputes would be resolved under English law? We also established in Part 1 that the same legal processes, laws and statutes apply equally to each example provided the child is found to be “habitually resident” in England or Wales.
If adults with parental responsibility cannot agree on where a child should live, then there is a dispute. Such disputes can sometimes be resolved without an application to the Courts, for example by arranging a mediation. In reality, though, the dispute will often end up in Court, as there is little for the parties to bargain over to try to reach an acceptable solution. It is essentially a binary issue - the child either stays or goes.
In a small number of cases a parent may agree for the child to go if suitable contact arrangements can be put in place for them to see the child once they have moved.
Application to the Courts
If a negotiated solution is not possible, then an application to the Courts is necessary. This is called an ‘application for leave to remove’. Due to the delays inherent in the English Court system, advisors should consider making such an application as soon as possible if their athlete wishes to move with the children (like our rugby player).
Of course if the athlete is defending the application and does not want the children to move with their mother (like our football player), the onus is on the other party to bring the matter before the Court as they cannot move without the other’s permission.
How will a court decide whether to grant an order allowing a parent to permanently relocate with the children?
The relevant legal test for such an application has developed through case law over time.
The leading judgment for over 20 years was handed down in Payne v Payne.1 In this case, the Court of Appeal set down a number of principles for how an application for leave to remove should be dealt with by the court, which included,
- the welfare of the child is paramount;
- no presumption in favour of the applicant; and (importantly),
- that the court would undertake an assessment as to how refusing the application would impact on the parent wishing to relocate/return home.
The thinking behind the third principle is that a parent wishing to move away from this country to return home, or to move to an entirely new country and start a new life abroad with their children would be so devastated by not being permitted to go, this would impact on their ability to care for the children resulting in a detrimental impact on their welfare.
This approach, however, was troublesome to practitioners and led to a perception held by many that it was becoming too easy to make a successful application, particularly for mothers returning with their children to the country where they had been born.
Case law has now moved on, and cases such as MK v CK2 have established that the only principle the court must apply is that the child’s welfare is paramount, and that all of other principles set out in Payne are guidance only. When considering the welfare of the child, the court will have regard to the following factors:3
- the ascertainable wishes and feelings of the child;
- his physical, emotional and educational needs;
- the likely effect on him of any change in circumstances;
- his age, sex, background and any characteristics which the court considers relevant;
- any harm which he has suffered or is at risk of suffering;
- how capable each of his parents is of meeting his needs; and
- the range of powers available to the court.
The weight given to each of these factors will depend on the particular facts and circumstances of the individual case. In a hypothetical situation where a child has a disability or specific learning difficulties, for example, greater weight will be given to their physical, emotional and education needs and the capability of each parent to meet those needs than other facts.
The wishes of the child
The wishes and feelings of the child will become more relevant and determinative as the child gets older because section 1(3)(a) of the Children Act 1989 provides the court will have regard to the child’s wishes and feelings in light of the child’s age and understanding. Consequently, the older and more mature a child is, the more weight will be given to their wishes and feelings.4 If, for example, a 14-year-old child of a player wants to move abroad with him, it is likely the court will allow them to go. If, however, the child is 8 years old and expresses the same wishes, it is less likely to influence the court.
Important practical steps alongside the legal process
What can be said with some certainty, however, is that the court process is difficult, emotional and stressful. Advisers must be aware of the impact that any such litigation may have on a player’s performance, attitude and ability to concentrate. It is hoped that specialist advice at an early stage, and even before proceedings are issued, will ease the burden on the player and allow them to concentrate on matters on the field.
Aside from the legal test the court will apply, there are specific practical steps that those advising players should be aware of either if they are the party wishing to move away with their children, or the players defending an application and wanting the children to remain with them in this country.
Involvement in the child’s life
In either situation, the player should aim to be involved in their children’s lives as much as possible. Doing the school run, helping with their school work and going to parents’ evenings, bathing them and putting them to bed are all examples of being involved.
These actions will have an impact in any proceedings that may follow. For example, they will support an argument that the player has had such a significant involvement in the child’s life that any move to live in a different country would be entirely contrary to their best interests and promotion of their welfare that the application should not succeed. Or, conversely, that they must move with the player because to be without that care would not be in their best interests.
Footballers and other professional athletes are often in a position with their work commitments whereby they can be more flexible in terms of the time they can spend with their children. Conversely, however, the hours might be irregular and players will most often be competing at a weekend when the children are not at school.
An athlete’s life may also involve long periods of time spent abroad and away from home, such as for international cricketers, and that again will impact on the time that they can spend with their children. What is important is that insofar as their playing and training commitments allow, they are fully involved in their children’s lives, and this will apply both to male and female athletes.
Plans for relocation
A key element to any application of this nature will be the plans for the relocation that are presented to the court. These must be as comprehensive as possible and if, for example, a footballer wishes to move to play for a foreign club, their advisers should contact the club they are moving to as soon as possible as they will able to assist with the various elements of any such relocation.
Extensive thought must be given to where the family will live both in the short term and more permanently. Plans must be made about where the children will be educated, the support network that the player will have in terms friends and family who can assist with child care, and, very importantly, the proposals for when the children will see the non-resident parent.
One of the key aspects of this process is that the court will look at the motivation behind the application. Is it a malicious step taken by one parent to deny the other parent time with the children? If the court considers this to be the case, the application will be unsuccessful. If the applicant can demonstrate that they have a well thought-out plan offering appropriate levels of time for the children and the parent left behind to spend together, then that will very much count in their favour.
Defending an application
If you are advising a player who is defending the application, a thorough examination of the proposals put forward can be an effective way to defend the case. Is the housing that is being proposed appropriate? Do the contact proposals work in practice? Is it possible to travel to the proposed jurisdiction and spend time with the children as has been put forward or not? How does this work with a player’s training and playing schedule? Finances also need to be taken into account, and a careful assessment of whether or not the plan can be afforded is essential.
In conclusion, due to the international nature of their work, footballers and other professional athletes are susceptible to applications for leave to remove.
Whilst it is possible to enter into a written agreement setting out arrangements for where a child would live in the event a relationship has broken down, this will only serve as a record of the wishes and intentions of the parties and will be one factor taken into account by the court; the agreement will not be legally binding and it will not prevent a parent from making an application for leave to remove. Ultimately, the courts will still make a decision based on the basis of factors set out above.
Practical steps can be taken when the player initially moves to this jurisdiction as set out above and summarised as follows:
- Ensure the player is as involved in their children’s lives as possible either if they are considering an application to move from this jurisdiction, or if they believe the other parent will make an application.
- Before making an application or defending an application, consider the motivation for the move. If it is to simply move away from the other parent and limit the time they spend with the children, then the application is unlikely to be successful. The motivation must be because the move is in the best interests of the children.
- Plan, plan and plan some more. If you want to move abroad, your plan must be as comprehensive as possible with detailed proposals in respect of where you and children will live, how they will be educated and the time the parent staying behind will spend with the children in the future.
- Take specialist legal advice as soon as possible. Applications for leave to remove can be complicated and difficult, not to mention emotionally draining. A lawyer specialising in such an application will assist in all such aspects and the sooner they are instructed, the greater strategic input they will be able to have.
This is, however, a difficult area of law and the nature of human relationships is that they are often unpredictable and irrational, based on emotion and instinct.
Advisers should seek to minimise the impact that any such issue has on a player’s performance by ensuring that specialists are on hand as soon as possible to give advice as to how an athlete, whether they are a mother or father, can plan a move abroad with their children, or defend any potential move abroad by the other parent of their children.
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- Tags: Athlete Welfare | Children Act 1989 | Convention on the Rights of the Child 1990 | Dispute Resolution | England | Family Law Reform Act 1969 | Hague Convention 1980 | Hague Convention 1996 | Premier League | United Kingdom (UK) | Wales
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About the Author
Josh specialises in all aspects of relationship breakdown including divorce, finances, children matters and nuptial agreements.
Josh has experience in acting for high-net worth individuals in cases involving complex financial structures and international elements, in addition to challenging children matters. He has also acted for a number of clients in the sports industry.
Josh is admitted to practise in England and Wales.