Leave to removeCurrent law: The basics

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Written consent is needed to remove a child from the UK

No person may remove a child from the UK without the written consent of the other parent and/or any other person who has Parental Responsibility for the child, or the leave (permission) of the Court. The only exception to the need to obtain consent from the other parent (and anyone else with Parental Responsibility for the child) is where there is a Residence or Child Arrangements Order in force in relation to that child which covers the person with whom the child is to live and/or when the child is to live with any person.

In that case, the parent with a Residence or CA Order can take the child abroad temporarily for up to a month, without the other parent's written permission or the leave of the Court.

Regardless of whether there is a Residence or Child Arrangements Order in place, a parent seeking to remove a child permanently from the UK should not do so without the other parent's written agreement, or failing that, the permission of the Court. This is so, even if the other parent does not have Parental Responsibility for the child. This is because interference with a parent's "right of custody" (which need not include daily care and control of the child) will amount to Child Abduction, which is likely to result in an order for the summary return of the child to the UK and will usually also be a criminal offence.

If the parent wishing to relocate abroad with the child cannot obtain the written consent of the other parent (and any other person with Parental Responsibility for the child) the parent seeking to relocate must make an application to the Court for permission to take the child abroad (whether temporarily or permanently). This is known as "Leave to Remove".

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Any decision on leave to remove will be decided in the child's best interests

The Court's decision whether or not to allow the relocation of children to another country will be decided on the basis of what is in each child's best interests ("the Welfare Principle"). The court will carry out a global holistic evaluation of the welfare of each child by reference to the checklist of specific factors set out in the Children Act 1989 ("the Welfare Checklist"), involving an analysis of all the welfare options, followed by evaluation of the positives and negatives of each option.

All the options put forward by the relocating parent must be weighed against the competing options of the other parent. In particular, there must always be an analysis of the potential benefit of the relocation to the new country measured against the erosion in the quality of the children's relationship with the left behind parent in the event of the relocation. Attempts to categorise relocation cases on the basis that they involve "a primary carer" (mother) or "shared care" arrangements for the children following the breakdown of the parental relationship are no longer seen as particularly helpful or relevant in deciding such cases and should be avoided.

The court's emphasis on the importance of "the emotional and psychological well-being of the primary carer" in Payne v Payne, as interpreted in subsequent cases up until 2011, meant that a primary carer (mother's) application for leave to remove would usually succeed unless her relocation plans were ill thought out and/or she was motivated by the desire to obstruct the children's relationship with their father.

Now, no assumptions are to be made in favour of a parent seeking to relocate the children abroad (nearly always the children's mother). Consequently the left behind parent (nearly always the children's father) is more likely to be successful in opposing the relocation of their children than used to be the case.

The judicial guidance in Payne is still relevant, to be used as guidance to help judges identify the most important factors to be taken into account, the weight to be attached to them and to promote judicial consistency in decision-making, but not as a rigid principle, so as to dictate a particular outcome to the case. Each case will be decided on its own particular facts and the judge hearing each case will be entitled to decide the extent to which the guidance in Payne assists him or her in deciding the case.

The outcome of applications for leave to remove now tend to be much more finely balanced and difficult to predict. This underlines the importance of obtaining expert specialised legal advice, whether you are a parent wishing to relocate abroad with your children or a parent who is opposed to the proposed location.

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