Help with leave to remove cases.
A parent who wishes to take their children out of the UK to live in another country, or for a lengthy stay in another country, will usually have to apply to the family court for leave to remove their child or children.
Although technically, permission may not be needed in situations where only one parent has parental responsibility and that parent wishes to relocate abroad with the child, great care must be taken not to relocate without the other parent’s permission, otherwise there can be 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.
It is a criminal offence to take a child under 16 out of the country without the appropriate consent.
What is classed as child abduction in the UK?
Child abduction is when a person sends, or takes, a child under 16 out of the UK without the permission of the person with Parental Responsibility, or permission from the court. If a person has a Child Arrangements Order for a child to live with them then they are allowed to take the child out of the UK for up to 28 days without appropriate consent. Also if a person has a Special Guardianship Order for a child they are able to take the child out of the UK for up to three months without appropriate consent.
Appropriate consent is classed as one of the following:
The mother of the child;
The father of the child if he has Parental Responsibility;
The guardian of the child;
The special guardian of the child;
The holder of a Residence Order for the child;
The holder of residence under a Child Arrangements Order for the child;
The Local Authority if the child is in care;
The Court if the child is detained or a ward of court.
A mother can take a child out of the UK without a father’s permission if the father does not have Parental Responsibility.
What if I am unable to obtain the appropriate consent to take my child abroad?
If two or more people with Parental Responsibility for a child are unable to reach an agreement about taking the child out of the UK, then it is the responsibility of the person wishing to take the child to obtain the court’s permission to do so. Be aware that it may be a criminal offence and/or contempt of court to take the child out of the country without the appropriate consent.
Am I able to take my child on holiday out of the UK and how often?
If a parent has either a residence order in place, or is the holder of residence under a Child Arrangements Order, then they may take the child out of the UK for up to 28 days without the consent of anyone else who has Parental Responsibility for the child, unless there is an order in place expressly prohibiting this. If the parent intends to take the child out of the UK for longer than 28 days, then they will need to acquire the appropriate consent. If this cannot be agreed then a court order would need to be obtained.
The courts can impose restrictions or require that a passport be surrendered if a parent is concerned about the frequency of trips abroad or fears that the other parent may abduct the child.
If a parent wants to take the child abroad for a short holiday it is advisable to seek the agreement of the other parent prior to travel. Parents should be reasonable about this and put the child’s interests first and also provide the other parent with plenty of notice.
Am I able to stop my ex partner moving to another area in the UK with my child?
If a parent wishes to relocate to another area within England and Wales and wants to take the child with them, that parent will not need the consent of anyone else with Parental Responsibility.
If the other parent does not want the child to move, then they can ask the court to prevent the parent from moving with the child by applying for a prohibited steps order. The child’s welfare will always be the primary consideration of the court. The court will consider the distance that the parent wishes to move and how contact with the left behind parent will continue.
Can I trace my child within the UK if my ex partner has moved away without my knowledge?
If a child is believed to be within the UK but their location is not known, it is possible for the left behind parent to make a court application to try and locate the child. It is important for this to be done earlier rather than later as the longer it takes to find the child the harder arranging the effective return will be, as they are more likely to be settled in their new environment and moving them again may not be in their best interests
If I am an unmarried father without Parental Responsibility, can I do anything to prevent my child’s mother from taking my child?
If an unmarried father without Parental Responsibility has concerns that his child will be relocated to another part of the UK, then he should consider getting a Prohibited Steps Order and/or applying to become the resident parent under a Child Arrangements Order.
A Prohibited Steps Order, if granted by the courts, will prevent the mother taking the child and may also require that the child’s passport is surrendered. A Child Arrangements Order, if granted by the courts, will decide where and with whom the child shall live.
Can I legally move abroad with my child?
If there is only one parent with Parental Responsibility for the child, the parent is able to lawfully remove their child from the UK providing that it is not forbidden by a court order.
Where there is another person with Parental Responsibility, the parent will need to obtain either oral or preferably written consent from those people. Where there is either a residence order, a Child Arrangements Order or care order in place, written consent from everyone with Parental Responsibility will need to be obtained.
If the parent wishing to go abroad is unable to obtain this consent, then they can apply to the court and ask for the court’s consent.
When a court makes a decision about the removal of a child, the child’s welfare will always be the primary consideration.
How will the Court decide whether to grant permission to take a child abroad or not?
The courts will decide the case with the welfare of the child being their primary concern and make their decision by determining what is in the absolute best interest of the child.
The courts will take into consideration things like;
Any thoughts, feelings and wishes of the child,
The child’s emotional, physical, and educational needs, i.e. do they need extra support.
If and how any change in circumstance will affect the child, both positively and negatively,
If the child has previously suffered any harm or is likely to in the future,
Any age, background or any other characteristics that may be relevant to the proceedings,
How is each parent capable of meeting the child’s needs.
They will also look at the motives behind the case and address things like:
Is the parent´s application genuine, i.e. that it is not motivated by a selfish desire to exclude the father from the child’s life?
Is the parent´s application realistically founded on practical proposals that have been both well researched and investigated?
What would be the impact on the parent of a refusal of her realistic proposal?
Is the opposition motivated by a 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 the left behind parent and their future relationship with the child if the application is granted?
To what extent would that detriment be offset by the expansion of the child´s relationships with the wider family and homeland?
For further information on leave to remove cases please contact us here at Gregorian Emerson Family Solicitors where we have extensive knowledge of this area and can help guide you through the process.
Please call us on 01483 826470 and we will be happy to discuss your situation with you.