International (leave to remove)

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It’s an inevitable consequence of international families that when, or after, parental relationships break down, one parent may want to live in another part of the world. This is a cause of huge sadness for one parent whose relationship with the children may be at risk or of being demoted. Permission of the other parent or of the court is necessary for a child to be moved permanently abroad.

The England and Wales jurisdiction has a reputation of being very liberal in allowing child relocation orders which has caused much pain as well as real damage to children’s relationships with both of their parents and extended families. Child relocation applications to the court (leave to remove) are increasing with the substantial movements of people around the world.

Technically, permission may not be needed in situations where only one parent has parental responsibility and that parent wants to go abroad with the child. However, great care must be taken to not relocate without the other parent’s permission even when they do not have parental responsibility otherwise there is a real risk of child abduction proceedings in the civil and criminal courts being initiated.

Written permission should always be sought from the other parent in all cases and if not provided then an application should be made to the court for leave to remove from the jurisdiction.

Relatively recent judgments from the court of appeal have moved towards a slightly more balanced view of leave to remove cases and the importance of children’s relationships with both parents. In the past judges in the first instance courts were believed to almost just wave applications from the so-called primary carer successfully through. Nowadays it is not quite so easy for applications for leave to remove to succeed there are times where the case law can make it more difficult and even stop applications being successful.

CAFCASS Officers who generally are tasked to do reports on a leave to remove application are now more likely than in the past to recommend refusal of the application or to say it is finely balanced and not make a definitive recommendation to the court, leaving the Judge to decide.

The courts are far more likely to refuse a leave to remove application if both parents are sharing the care in a fairly equal split of time, perhaps even substantially at times will suffice. A shared residence order is not enough if the parents do not share the care of the children in more or less equal proportions for the courts to look at this matter through the prism of a case called Re Y [2004] 2 FLR 330 (guidance in applications by a parent with a shared care arrangement) a case which makes the likelihood of success for relocation more difficult. Although the guidance in Payne should still be considered in relocation cases it has a lesser role to play in shared care arrangements.

The court’s first consideration is determining what is in the best interests of a child in each individual case. Although opposing a international relocation application by a primary carer may seem hopeless at times, the courts are far more likely to refuse a leave to remove application these days than they did in the past. if a robust and detailed order that provides for a meaningful ongoing relationship with children is not agreed then it may be the better option to oppose an application.

It is crucial to secure an order that provides for a practical and realistic schedule with children who are outside of the jurisdiction, this may entail the primary carer bringing the children back at times and the understanding that child maintenance may often be offset by travel and accommodation costs for the dreadfully named ‘left behind parent’ and the children. Often if the other jurisdiction has the equivalent of a shared residence order then that should be agreed by consent if the primary carer is genuine in their wish to promote the relationship between the children and the parent left behind, if not offered it is certainly to be considered as a possible application.