A child cannot be taken abroad – whether for a day-trip to France, or a three-week summer holiday – without the permission of all those who have parental responsibility for that child. Often, permission will be forthcoming and arrangements can be by agreement. It is then sensible to draw up a formal agreement with that can be made into a Court Order; this can address any problems that may arise in future. We can assist you with drawing up an agreement and making an application by consent to the Court. You may also need to obtain a “mirror order” in the country you are moving to.
In the absence of such permission, a specific Application must be made to the court. Otherwise, the parent who removes the child from the UK will be deemed to have abducted that child, and court proceedings (to include criminal proceedings) may be brought in England, and in the other country, to secure the child’s immediate return.
The exception to this rule is where a residence order has been granted by the court, in favour of that parent seeking to take the child abroad. In such circumstances, that parent can remove the child from the country for a period of up to 28 days, without having to seek permission. To remove a child for longer than 28 days, permission is still required.
We are regularly consulted by parents where one or other of them wants to take the child to live abroad (outside of England & Wales). This may be at the time of separation. For instance, one parent may feel that he/she only moved to England to be with their spouse and, now that the marriage is over, he/she may want to return home with the child, to be close to their own relatives and support network. At other times, it may be some time after the separation or divorce. Perhaps he/she has been offered a fantastic job opportunity abroad, or has met a new partner from abroad and wants to start to make a new life with the child overseas. Whatever reason there may be in favour of the relocation, the move will often be heavily contested by the parent who will be left behind.
In the absence of agreement, the parent seeking to remove the child will have to make an Application to the court for what is called “leave to remove” the child from England & Wales.
There have been a number of recent cases that provide some helpful guidance to both parents on how the courts are deciding such Applications in a particular set of circumstances. Ultimately, the court’s guiding principle will be that the welfare of the child is paramount.
If you are the parent seeking to relocate with the child (the Applicant), your prospects of succeeding in your Application will be greatly improved if you are able to show to the court that you have given the relocation very careful thought and preparation. Can you show the court that the move would be in the child’s best interests? Have you made practical enquiries such as, where you and the child will live? What arrangements have you made for the child’s schooling? How will you support yourself, and the child, financially? What arrangements do you propose for contact with the parent left behind? How will the costs of these arrangements be met?
If you are the parent who will be left behind (the Respondent), you may have good reasons for opposing an Application. Your most immediate fear may very well be, how often will I be able to have contact with my child? Whilst in this era of social-networking and digital media, there are several creative ways of being able to stay in contact – for example, via Skype – this is no substitute for regular, face-to-face contact between a parent and child. If you want to defend such an Application, a carefully prepared case showing why it would be inappropriate for the court to consent to the move, can often prove persuasive.
Applications for leave to remove are often very difficult, as there is usually very little scope for compromise, and it is important to take specialist legal advice at an early stage. Here at Bross Bennett, we regularly advise both Applicants and Respondents in such cases. Please contact us if you would like to discuss your particular circumstances further.