Leave to removeAvoiding Court

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Avoiding court

Making an application to Court for leave to remove should be seen as a last resort. Such Court applications are very stressful, expensive and destructive of co-operative parenting arrangements in the future.

Talking things through face to face with the other parent
Before embarking on Court proceedings for leave to remove, you should do everything you can to try and agree matters with the other parent, to avoid litigation, by talking through your relocation plans and the reasons for your wish to move abroad with your children.

If parents cannot agree what should happen (and for obvious reasons it may be very difficult for the parent who is faced with being left behind following a relocation to agree), it may be helpful to talk matters through in mediation.

Even if you are successful, either in obtaining leave from the Court to remove your children abroad or in preventing the relocation, the other parent is going to be extremely upset about the outcome as well as the financial costs and emotional distress that result from those proceedings, for which he or she will inevitably blame the other parent. This will also impact on the children who are caught between their two parents. The destructive impact of all this on the co-parenting arrangements (which hitherto may have been very amicable and constructive) is likely to last for a very long time and may even be permanent.

For these reasons you should consider all the options available for achieving a negotiated outcome, however unlikely it may seem that you and your former partner will be able to agree on what should happen.

Prior to issuing Court proceedings you will be required to attend a meeting with a family mediator (known as a Mediation Information and Assessment Meeting), to find out how family mediation and other alternatives to Court proceedings could help, unless you come within an exempt category.

Family Mediation
Family Mediation, with a mediator with particular expertise in relocation cases, can be a helpful forum for the discussions that are needed between the parents. It is about providing a safe space where you and your former partner can explore the various options in a less formal way than is possible within the Court process and before your respective positions become entrenched. It is important that you both try and be as flexible as possible in your approach and listen to the other parent's concerns.

All the discussions that take place within mediation are confidential so you have the opportunity, with the help of the mediator who is impartial, to explore the possibility of reaching an agreement, or at least discussing the issues, in a non-confrontational way.

If you are the parent opposed to your children relocating abroad and you feel that the other parent has a strong case, you may use mediation as a neutral forum to try and negotiate extensive contact arrangements (which could include financial help with contact costs), without committing yourself to agreeing to the relocation. The other parent may be more flexible and willing to discuss and agree extensive contact arrangements and to make a financial contribution to the costs of such contact as a means of securing your agreement to the relocation and thus avoid the substantial legal costs on both sides of contested proceedings. It may be possible to explore other options, for example delaying the relocation until the children are older and have completed crucial stages of their education; or the left behind parent may be prepared to discuss how moving himself to the new jurisdiction and sharing the parenting there could work; or the relocating parent could agree to leave the children with the other parent for a period before they join her in the new country.

If you are able to agree matters within the mediation process this will be on a without prejudice basis, which means that your discussions are private and cannot be referred to in the court process if matters are not agreed. Any agreement reached can then be formalised with the assistance of your legal advisers and, if appropriate, converted into a Consent Order from the Court, so it becomes legally binding.

Collaborative Law
This works in a similar way to family mediation and, like mediation, is a voluntary process. Collaborative law involves you, the other parent and your collaboratively trained lawyers who work as a team. You, the other parent and your lawyers attend a series of face to face "four way" meetings, where discussions take place. Other professionals, in particular family consultants from a family/therapeutic background, may be brought in to work with you and the other parent which can be very helpful when dealing with such difficult issues concerning your children.

Again, all the discussions take place on a without prejudice basis, and if agreement is reached your respective lawyers will be able to help you convert the agreed arrangements into a legally binding Court order. If matters cannot be agreed, the lawyers in the collaborative process are disqualified from acting for either of you on contested basis, if the matter proceeds to Court.

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