Leave to Remove

What are leave to remove applications?

Leave to Remove applications are typically made to the court by the resident parent (or a parent with shared residence) to seek the court's permission to emigrate with the children.

The applications are brought under section 13(1) of the Children Act 1989 which reads:

13 Change of child's name or removal from jurisdiction

(1) Where a residence order is in force with respect to a child, no person may -

(a) cause the child to be known by a new surname; or

(b) remove him from the United Kingdom;

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

Your consent must be sought for the children to be removed from the United Kingdom if you have parental responsibility for the children. Your consent should also be sought if there is a Children Act case pending before the family courts (Re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146). There is common law guidance that consent to remove the children from the jurisdiction should also be sought where the father has regular contact with the children (Re V (Jurisdiction: Habitual Residence) [2001] 1 FLR 253), but be aware that this is under UK law, which will be of limited or no use once the children have left the UK.

If a child is removed from the UK without your consent or the UK courts’ permission, and you hold legal parental responsibility for the children, then the removal is illegal. Reunite is a charity that specialises in assisting parents whose children are unlawfully removed abroad and we recommend you contact them. If you are concerned that your children may be illegally removed abroad, you should contact them as a matter of urgency. Their helpline number is 01162 556 234. On our home page, we provide a one page guide to applying to the court for an emergency prohibited steps order to help prevent the children’s unlawful removal.

While leave to remove applications are often granted, the court's involvement may still be useful, as arrangements for contact should be agreed before the emigration goes ahead. This may involve increased holiday time for the parent who remains in the UK, decisions concerning who covers the cost of travel and accommodation costs, that there must be mirror orders (orders for contact made in the country of relocation as well as in the UK), and other measures to help ensure contact goes ahead as ordered.

Be aware that once the children are habitually resident in a foreign country, enforcement of orders can be very difficult and costly. You are likely to have to travel to the country and seek a contact order in the country where the children live. This will involve legal, travel and accommodation costs.

What the Court considers when reaching a decision as to whether to grant Leave to Remove

The case law Payne v Payne currently defines what a court should consider when refusing or granting a leave to remove application. In that case, Lord Justice Thorpe set out the two hurdles which the resident parent should satisfy before the merits of their application are further considered:

·         That their motives for the move are genuine;

·         That their plans are well thought through.

We strongly urge any parent involved in a leave to remove case to read Payne v Payne, Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330, and Re K (Children) [2011] EWCA Civ 793, as these are the leading cases and set out what should be considered by the court. You will find them on our Case Law page. We also recommend you read our Parliamentary Briefing Report, 'Family Law: Relocation and the Need for Reform'.

It is estimated that 90% of leave to remove cases succeed with the main reason being that to refuse the application would cause the resident parent such distress that this would (in theory) adversely impact on the child's welfare. This is commonly referred to as the ‘distress argument’. The strength of the distress argument was rooted in the case law Payne v Payne which sets out  guidance that courts must consider when hearing a leave to remove case.

In the case Payne v Payne at paragraph 26, Lord Justice Thorpe set out the guidance:

26. In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:

(a  the welfare of the child is the paramount consideration; and

(b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children [the distress argument]. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.

While it is said that the welfare of the child should be the court's paramount consideration, in practice, it is our experience that the impact on the primary carer has been considered foremost.

UPDATE

In July 2011, a new judgment, Re K [2011] EWCA Civ 793 came from the Court of Appeal, stating that the guidance in Payne v Payne was simply guidance, and that each case must be judged on its unique facts. While the 'distress argument' was a factor to be considered, the child's welfare must be the court's paramount consideration, and indeed, the only point of law made within the Payne judgment was the 'paramountcy principle' (that child welfare must be the court's paramount consideration).

Further guidance was given that where care was shared between the parents, the case of Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330 should be referred to for guidance, and not Payne v Payne. Lady Justice Black went further, in saying 'I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case'. This case was the first, to our knowledge, where a father had successfully appealed against a lower court's decision granting the mother leave to remove.

Circumstances which individually assist the likelihood of a Leave to Remove application being granted

1)     it can be demonstrated that refusal of permission will be sufficiently emotionally or psychologically harmful to the resident parent or the children’s step-parent that it impacts on their care of the child (this is commonly referred to as the distress argument).

2)     the resident parent or their new partner seeks to return to their country of birth and/or has family in the country they wish to emigrate to.

3)     there are no concerns as to the resident parent's ability to provide adequate childcare.

4)     the plans for the move are well thought through.

5)     there is no intention to disrupt the relationship between the child(ren) and the other parent.

6)     a support structure exists to assist the resident parent with the child care in the new country (although this is not essential).

7)     the plans for continued contact with the non-resident parent are practical.

8)     the resident parent has remarried and the child is in a new family structure.

9)     the children have step-brothers / sisters within the resident parent's new relationship (the Court would rarely agree to the ‘new family’ being divided).

10)  the child has sufficient maturity to understand what impact the move would have on their life and wishes to emigrate.

11)  the resident parent is clearly the majority carer. It is our experience that the lower the number of nights per week or fortnight that the non-resident parent has their children stay with them, the higher the difficulty in preventing a leave to remove, and vice versa.

Circumstances which may assist someone in defending against a leave to remove application

1)  that the resident parent seeks to reduce or prevent the child's relationship with their non-resident parent due to continued hostility. A history of broken contact, refusal to co-operate over schooling/medical matters may assist in demonstrating questionable motive.

2)   the division of care time that exists between the parent's two homes. Where care is shared, the court is less likely to disturb the status quo.

3)     that the plans for the move and the child's subsequent care are not practical. Questions need to be asked such as:

a)     Who will care for the child if the resident parent (or child) is ill?

b)    What childcare plans exist? How do these compare to the support structure in the UK.

c)     Who will pick the child up from school?

4)     there exist concerns about the resident parent's ability to provide consistent care.

5)     there are concerns regarding the resident parent’s mental health.

6)   that a strong bond exists between the child and non-resident parent including substantial contact time.

7)   that the child currently benefits from a shared care arrangement between the resident / non-resident parent.

8)     the child is sufficiently mature to understand what impact the move would have on their life and wishes to remain in the UK.

Below, our new report into 'Family Law: Relocation and the Case for Reform'. Published November 2010

Our latest Parliamentary Briefing Report, presented at the Palace of Westminster on 9th November 2010. You can also download our speech. Click on the report image below to download the detailed case and arguments for this antiquated law to be reformed.