Leave to Remove
The Custody Minefield Factsheets –
Smartphone Series (optimised for smartphone users). Copyright Michael Robinson
2010. Copyright Michael Robinson 2010. Crown Copyright
material is reproduced with the permission of the Controller of HMSO and the
Queen's printer for Scotland.
Circumstances
which may assist someone in defending against a leave to remove application
What are leave to remove
applications? <Back to Top>
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 <Back to Top>
The case law Payne v Payne sets out guidance which the court should consider if the emigrating
parent is the primary carer. 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 non-resident parent
involved in a leave to remove case to read Payne v Payne, as this is the
leading case law and sets out what should be considered by the court. You will
find it on our Case
Law page. It is important though to remember that the only point of law
from Payne v Payne is that the welfare of the children must be the court’s
paramount consideration (as is the case with any proceedings involving
children).
You would imagine
that such things as the impact on the child of being removed from school, the
loss of their social network and extended family, the loss of familiarity with
their home environment, removal from their native culture, and the loss or
significant change to their day-to-day relationship with their
non-resident parent (or parent with shared residence) would carry great weight
with the court. You would be wrong.
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 weighting granted to the distress argument is
rooted in the case law Payne v Payne.
Where care is shared,
the courts should instead refer to the guidance as set out in the case Re Y (Leave to Remove from the
Jurisdiction) [2004] FLR 330 (also available to download from our Case Law page. The guidance in Payne v Payne
only applies where there is a primary carer (and not where care is shared). In
all cases, the court’s decision should be based upon the individual facts of
the case.
Circumstances
which individually assist the likelihood of a Leave to Remove application being
granted <Back to Top>
1) where the emigrating parent is the primary carer.
2) it can be demonstrated
that refusal of permission will be sufficiently emotionally or psychologically
harmful to the primary carer that it impacts on their care of the child (this
is commonly referred to as the distress argument).
3) 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.
4) there are no concerns as to the resident parent's ability to provide
adequate childcare.
5) the plans for
the move are well thought through.
6) there is no intention to disrupt the relationship between the child(ren) and the other parent.
7) a support
structure exists to assist the resident parent with the child care in the new
country (although this is not essential).
8) the plans for
continued contact with the non-resident parent are practical.
9) the resident
parent has remarried and the child is in a new family structure.
10) the children
have step-brothers / sisters within the resident parent's new relationship (the
Court would rarely agree to the ‘new family’ being divided).
11) the child has
sufficient maturity to understand what impact the move would have on their life
and wishes to emigrate.
12) 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 <Back to Top>
1) that the care of
the children is essentially shared between the two, separated parents.
2) the greater the
amount of parenting time spent with the non-relocating parent, the higher the
hurdle for relocation, although shared care is not an automatic bar to
relocation being granted.
3) that the
relocating parent seeks to reduce or prevent the child's relationship with
their non-relocating parent due to continued hostility. A history of broken
contact, refusal to co-operate over schooling/medical matters may assist in
demonstrating questionable motive.
4) 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?
5) there exist concerns about the relocating parent's ability to provide
consistent care.
6) there are concerns regarding the relocating parent’s mental health.
7) that a strong
bond exists between the child and non-relocating 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.
Support <Back to Top>
The Custody Minefield offers support forums
where you can ask our team of experienced support staff questions about family
law, the courts and separation. Collectively, we have answered more than 10,000
posts on other family law related support forums. Visit our Support Forum Page on
The Custody Minefield website to find out how to register.