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International Relocation (Leave to Remove)
There may come a point in a parent’s life when they wish to move to another country and take their child with them. This could be to pursue a job opportunity, relocate with a new partner or move to a country where they have family. Unless everyone who has parental responsibility agrees to this, the parent who wants to relocate will need to apply to the court for permission.
These can be difficult cases for the court to decide because the possibilities for compromise are limited because the outcome is binary: stay or go. Our children law specialists have represented numerous parents on both sides of the argument and have a sophisticated understanding of the challenges that come with applications of this nature.
Please note that if an urgent situation arises and you are concerned that your child may be at risk of abduction, you must take immediate legal advice. It is far easier to prevent a child from leaving the UK unlawfully than it is to get them back once they have left. For more information, visit our International Child Abduction page.
How the Law Relating to International Relocation Works
If a parent takes their child out of the UK for any length of time without the other parent’s consent or the court’s permission, they may be committing a criminal and/or civil offence. This applies even for short trips.
An exception is that if a person has a ‘lives with’ child arrangements order, they can take their child out of the country for less than a month without the court’s consent, provided there are no other orders in place which expressly prohibit them from doing so.
In all circumstances, taking a child out of the UK for a long-term or permanent move requires the permission of everyone who has parental responsibility or, if that is not forthcoming, the court.
The law works in a different way if a parent plans to relocate to another part of the UK. Visit our dedicated page for more information.
The Importance of Parental Responsibility
Having parental responsibility makes a difference to the legal position. Mothers and married fathers automatically have parental responsibility for their children. The situation can be more complex for unmarried fathers, second female parents and the parents of children born through surrogacy before a parental order is made.
That said, if a parent without parental responsibility still wishes to challenge a parent’s decision to move abroad, they can still make an application for the matter to be considered by the court.
How the Court Decides
Whenever a question arises about a child’s upbringing, their welfare is said to be ‘paramount’, which means that any decision must be in the child’s best interests. Deciding whether or not a parent should be permitted to relocate abroad with their child is no different. The court will undertake a careful analysis to see whether the plan is in their best interests.
The court has to apply a statutory welfare checklist to ensure that the child’s wellbeing is assessed holistically. This includes factors such as:
- Their ascertainable wishes and feelings - the court will not simply take what a child says at face value but assess it in context. Clearly this factor will increase in importance in children of greater emotional maturity
- Their physical, emotional and educational needs
- The likely effect on them of any change in their circumstances - granting an application for leave to remove represents a big change in the child’s life and the impact must be assessed carefully
- Their age, sex, background and any characteristics of theirs which the court considers relevant - social, linguistic and cultural factors could be important here and could sound either in favour of or against a move, depending on the precise situation
- Any harm which they have suffered or is at risk of suffering
- How capable each of their parents and any other person in relation to whom the court considers the question to be relevant is of meeting their needs
- The range of powers available to the court
Special Considerations in Leave to Remove Cases
The court’s approach has evolved rapidly in the last decade or so. Previously, there was at least a perception that if a primary carer had made sensible plans for the child’s relocation, their application was very likely to be granted. There was criticism that this approach gave insufficient weight to the effect upon the child’s relationship with the ‘left-behind’ parent and focused too much upon the impact of refusal on the parent who wished to move.
The court will start with a clean slate and should actively guard against relying on presumptions, instead, focusing on what is in this particular child’s best interests. This type of analysis is no different from what the court would do if it were deciding an issue between parents without any international dimension.
Nevertheless, some factual issues specific to leave-to-remove cases arise and will need to
be addressed whether you wish to relocate yourself or oppose the plan of your child’s other parent. This includes:
- What overseas country is involved? Is it an entirely new place or somewhere where the family has connections?
- Has proper consideration been given to the child’s education, social activities, housing and new support network?
- What about employment opportunities and childcare facilities?
- What arrangements for contact will be put in place? Are they meaningful and realistic? Are they enforceable in case of future disagreement?
- What will be the impact upon the child’s relationship with the left-behind parent if the other parent is allowed to go?
- What the psychological effect of a decision either way will be on the parents, insofar as this could impact on the child’s welfare?
For a parent on either side of the issue, meticulous research and preparation is needed. The court will scrutinise both parents’ cases closely. We know what to expect and will give you a clear steer as to what is needed to give your case the best possible chance of success. At all times, we will be honest with you about your prospects of success and the likely costs involved.
Does a primary carer seeking to move abroad have an advantage?
No. Relocation cases are highly fact-specific. The amount of time the potentially ‘left-behind’ parent spends with the child will be a relevant consideration but it is one consideration amongst many.
The court will look at the child’s best interests from every angle and analyse the plans of the parent who wishes to go. At the turn of the century, we would probably have answered ‘yes’ to this question but the situation is different today.
How important is the relocating parent’s choice of country? Does the court favour certain “types” of country?
Again, there are no inbuilt presumptions. The court will consider the ability of the foreign country’s courts to deal fairly with issues that may arise over contact in future. Significant safety issues may also play a role and the court will consider Foreign and Commonwealth Office country or region-specific advice where relevant. However, the court is not prejudiced for or against particular countries, provided the child’s safety and physical wellbeing is assured.
Do parents who plan to relocate to the country of their birth have an advantage?
This is only one factor when making a decision. The court will take seriously plans to ‘return’ to a country where a parent has enduring connections, especially if they are particularly isolated in this country.
However, as always, this will be balanced against a full analysis of the child’s welfare, including the impact on the relationship with the ‘left-behind’ parent if the application is allowed.
If I am unsuccessful in opposing an application for leave to remove, should I relocate myself to be nearer the children?
This is a very personal decision and something parents may choose to do in this particular situation. This is not practicable for everyone and serious consideration should be given to
If the application is granted, does the ‘left-behind’ parent need an order in the destination country to deal with contact arrangements?
In many cases, the court in England and Wales will want to ensure that any contact arrangements set out in an order granting permission to relocate overseas become an enforceable court order in the destination country (a mirror order). The ease with which such orders are obtained depends on the attitude of the courts in the destination country and the strength of its connections with the UK.
Currently there is no need to obtain a mirror order in cases involving EU countries as English court orders are automatically enforceable provided the court in England and Wales produces the correct certificate demonstrating that certain requirements have been met.
After the end of the Brexit transition period, this will almost certainly change and it is likely to become necessary to get a mirror order. However, this should not be a difficult step.
Will the end of the Brexit transition period change the way these cases are dealt with?
Not really. Before and after the end of the transition period on 31st December 2020, the courts in England and Wales will deal with cases concerning children who are habitually resident (usually live) here. Although leave to remove cases have an international dimension, the decision is really about what is best for the child, as assessed by the court in the country where they live.
For cases involving EU countries that begin after the end of the Brexit transition period, the arrangements for ensuring English and Welsh orders are enforceable will be different, and will likely be similar to the process for getting a mirror order in a country such as the USA. It is hoped that the experience of getting a mirror order within the EU will be straightforward for parents due to the strong tradition of legal cooperation that exists between England and Wales and other EU jurisdictions.
Talk to Us
If you are considering relocating to another country with a child or the other parent of your child has expressed a wish to move, you should seek legal advice and representation immediately.