Under English law nobody is allowed to take a child out of the jurisdiction of England and Wales without the permission of everyone who has parental responsibility (and exercises this) because it would be child abduction under the Hague Convention on Child Abduction.
If the court has made a child arrangements order to provide the child lives with someone (formerly a residence order), that person can take the child abroad for less than one month (at a time) and will therefore not need the permission of the other parent to take the child on holiday.
Since there is no such thing as “custody” any more, both parents (or other persons) who have parental responsibility, will retain it after a divorce, civil partnership dissolution or separation.
If a parent intends to relocate with the child abroad and someone else has parental responsibility (or court proceedings about the child are ongoing), they will need the permission of either the other parent (and anyone else with parental responsibility) or the permission of the court. This page sets out the court’s approach to such an application.
There is no specific provision in the Children Act on the question of permission to relocate (often described as “leave to remove”). The decision will be made with the child’s welfare as the paramount consideration and the court will go through the welfare checklist.
Although there is no presumption in favour of allowing the child’s primary carer to take the child abroad, in most cases the application is successful. If there is no primary carer or the issue is fairly balanced, the case may not be so clear cut and this is maybe the strongest argument for opposing one parent to take the child abroad.
There are many reported cases and the questions the court will consider are:
On a practical level the applicant needs to consider issues such as the following:
Every case will turn on its own facts. The applicant needs to prepare their case very carefully and with a lot of detail with the help of an expert solicitor with experience in this area. The costs of these applications will naturally be higher than those of other applications in relation to children, such as a child arrangements order, because the witness statements will need to show a lot of practical issues and have a large number of documents attached, which may also need to be translated.
If you are either contemplating such an application or if you are on the receiving side, you should contact an expert solicitor as early as possible. For advice on your specific circumstances contact Andrea Woelke at Alternative Family Law: ring or email us.
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This is an outline of the law, practice and procedure in England and Wales. It should not be taken as specific advice. All families and couples are different. The law may have changed since this was written and we therefore accept no liability for inaccuracies. Where examples are given, your personal circumstances may vary slightly, but the difference may be significant for the outcome of the legal process. Contact us for specific advice on your own circumstances.
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