Permission to Relocate Abroad with a Child (“Leave to Remove”)
In this blog post I am considering how Brexit impacts relocation applications.
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.
Until a few years ago it was relatively easy in England and Wales for a parent who was the principal carer to get permission to relocate with a child to their home country or to a country where their new partner lived. However, with the spread of shared care arrangements and the presumption of involvement from both parents, this has become more difficult. It is therefore important for either parent to get early legal advice before making any proposals. Remember that you can be cross-examined in the witness box on the contents of that email you might have sent without first talking to a lawyer a year ago.
There are many reported cases and the questions the court will consider are:
- The application must be genuine rather than a ploy to exclude the other parent from the child’s life. It is therefore important for the applicant to show that contact will continue, how this can practically be done and how it is affordable. Nevertheless, courts have granted permission to relocate to countries as far as Australia and New Zealand, where contact will only be practically possible a few times a year.
- The plans must be realistic and well researched. The applicant must show where they will work, where they and the child will live, who will look after the child when they are working, how life will be financed, where the child will go to school etc. This does not mean that the court will only allow a relocation to countries which are child and parent-friendly and have a good school system. No doubt it will be easier to make the case in these situations, but applications for relocation to developing countries have been granted.
- The court will then balance on the one hand the opposition of the parent staying behind, its genuineness and the possibility of the child’s future contact with that parent with on the other hand the effect on the applicant if the application is refused. Often applications are from mothers who have foreign nationality and want to return to their home country where they have a broad social network including family and friends who can help with childcare and where their career prospects are higher than in England. However, applications are also allowed by mothers who have never lived in the other country, but want to move there because they have had a good job offer or because they have met a new partner who lives there.
On a practical level the applicant needs to consider issues such as the following:
- The ease and the practicalities of travel to the other country for contact: Are there direct flights or trains? How much does it cost? Are flight schedules such as the other parent can come for a weekend at a time, or will he need to take time off work?
- For older children it can help the case if there are direct flights between the home city in the UK and the city where the parent proposes to move with an airline which offers children to fly as unaccompanied minors. Unfortunately, more airlines are either abolishing the system altogether (such as British Airways) or replacing routes by their budget airlines (Lufthansa). On most routes children over 12 or 13 can fly alone anyway and it is worth checking with the relevant airline. This way contact with the other parent can, at least during school holidays, happen back in the UK.
- Accommodation during contact: Hotels are artificial homes for children and no good long-term solution, so can the other parent stay in holiday houses (at least outside the season) or buy or rent a small flat or house?
- Practicalities of contact: Are there facilities for activities the other parent can do with the children, such as swimming pools, playgrounds etc.
- Indirect contact: Time between contact visits can be bridged by telephone contact, which in most cases works well for older children, but very young children can not say much on the telephone and find it often difficult to concentrate. Internet video telephony, such as through Skype or other providers are a low-cost effective way of engaging children who can then see the other parent. In addition the other parent may be able to read bedtime stories to the child and record them and either send tapes or CDs or send the files to be downloaded online.
- Nurseries and schools: The applicant needs to research this and show that state schools are of good quality or private schooling is available and affordable and the child would get a place at the local nursery and school. Often prospectuses are helpful.
- Social network: often this is very easy to show if the parent returns to their home country where often retired grandparents are able to help with childcare, siblings and friends of the parents have children of similar age etc.
- Language: Often the fear of the parent staying behind is that the child will in the future no longer understand English and communicate with the parent, especially if the child is still very young. If the applicant can show that there are arrangements for private English classes or the child will go to an international school, this can help.
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 making or opposing such an application, you should contact an expert solicitor as early as possible.
Even in international cases it is possible to come to an overall agreement through mediation. Sometimes it may be necessary to start court proceedings in one country first so that the other party cannot do that in another country. However, litigation in international cases can be costly, in particular if there are legal proceedings in more than one country. Mediation can cut through this and you can start mediation at any time in the proceedings.
For advice on your specific circumstances please contact a solicitor
9 May 2016 by Andrea Woelke