Leave to Remove applications are typically made to the court by the resident parent, a parent with shared residence or the parent named in a child arrangements order as the person with whom a child lives, 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 child arrangements 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)  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)  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.
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.
We provide a one page checklist to assist you in applying to the court for an emergency prohibited steps order to help prevent the children´s unlawful removal.
The case law set out in Payne v Payne  EWCA Civ 166 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:
It should be noted that it was held in the case K (Children)  EWCA Civ 793 that the guidance in Payne v Payne is simply guidance, and the only binding principle on the judiciary from that case was that the child's welfare is the court's paramount consideration.
The case law set out in F (Child)  EWCA Civ 1364 does however point to certain parts of Payne v Payne being useful guidance (in all relocation cases, whether or not there is a primary carer or parents share care), drawing attention to the following paragraph in Payne:
40. However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent´s rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother´s proposals are necessarily compatible with the child´s welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother´s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child´s life. Then ask is the mother´s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father´s opposition: is it motivated by genuine concern for the future of the child´s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child´s relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child´s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
Note that the judgment in F (Child) does not require that any one matter should carry great weight (as was implied in paragraph 41 of Payne v Payne).
The most recent summary of guidance from the various authorities following the review of Payne in 2011 can be found in NJ v OV  EWHC 4130 (Fam). Mostyn J repeats:
Circumstances which assist the likelihood of a Leave to Remove application being granted include:
Circumstances which may assist someone in defending against a leave to remove application
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?
After much experience of leave to remove cases, we recommend the following be considered during the non-relocating parent´s case preparation:
Where in the public domain, we provide case law (the full text of judgments) on our Leave to Remove Case Law section. As well as brief summaries of judgments, you'll find the full text in both html and pdf formats, to read on screen or download and print for court.
You should also understand, if leave to remove is granted, when the foreign court would gain jurisdiction over future decisions following the relocation and refer you to our jurisdiction case law library:
Where a residence order is in force, or a person is named as a person with whom the child lives within a child arrangements order, the person in whose favour the order was made may take the children abroad without the consent of anyone else for a month. Where no such order exists, or where the parent with residence wishes to take the children abroad for a longer period, in the absense of agreement from each other holder of parental responsibility, they must seek the court´s consent (by way of a specific issue order).
If the non-resident parent, or any other holder of parental responsibility objects to the children being taken abroad / and or has fears that the children may not return to the UK, they should apply to the family court for a prohibited steps order.
In respect of temporary leave to remove, where this is opposed and there is a risk of non-return, Lord Justice Thorpe gave guidance in the case Re K (Removal from Jurisdiction: Practice)  2 FLR 1084:
Further guidance was given in R (A Child)  EWCA Civ 1115:
"The overriding consideration of the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make an order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course"
Further, clarification was given in respect of the need for expert evidence:
"Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order."
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Family law information for parents whose children are resident in England and Wales
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