In determining court applications for leave to remove children permanently from the jurisdiction of the UK the child’s welfare is always the paramount consideration.
In determining the child’s welfare, the court must have regard to certain specific factors, set out in s1(3) of the Children Act 1989 (known as “the Welfare Checklist”):
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- His physical, emotional and educational needs;
- The likely effect on him of any change in his circumstances;
- His age, sex, background and any characteristics of his which the Court considers relevant;
- Any harm which he has suffered or is at risk of suffering;
- How capable each of his parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his needs; and
- The range of powers available to the court under the Children Act in the proceedings in question.
The Welfare Checklist contains no hierarchy and different weight will be attached to different checklist factors, depending on the circumstances of the particular case. Generally factors (a), (c) and (f) will be the most relevant factors in any application for Leave to Remove.
Over the last 5 or 10 years, increasing importance has been attached to the relationship between children and their fathers – who are usually the 'left behind' parent - following the breakdown of a marriage or parental relationship, culminating in the introduction of an amendment to the Children Act 1989. With effect from October 2014 the court, when considering an application for leave to remove, must presume in respect of each parent (so as long as that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm) that involvement of that parent in the life of the child will further the child’s welfare.