“leave to remove” a reflection on the case of MK v CK

The recent case of MK v CK has marked a change in the treatment of “leave to remove” or relocation cases. The father successfully appealed against the decision allowing the mother permission to relocate to Canada with the parties’ two children.

In the Judgment, when referring to the leading case of Payne v Payne, the Court of Appeal suggested that the guidance in Payne (which gives weight to the distress that is likely to be caused to the mother by a refusal of permission to relocate) should be treated as guidance rather than (as has been the case previously) a “principle of law from which no departure is permitted”. The mother’s distress should be treated as one of the factors of the case and not elevated above other factors affecting the child’s welfare.

One particular point to note in the case of MK v CK is that the father played a significant role in the children’s lives (there was a shared care arrangement in place whereby the father cared for the children for approximately 35% of the time). This undoubtedly influenced the Court of Appeal’s decision. It will usually follow that, the greater the respondent parent’s (usually the father) role in the children’s lives, the greater the damage caused to the children by being separated from that parent if relocation is permitted. We may therefore see a change in how relocation cases are dealt with where the children are cared for more or less equally by both parents.