What Is A Leave To Remove Application?

For separated parents, the possibility of a move abroad is fraught with complexity. If a child’s parents end up living in two different countries, it is going to have a substantial impact on their upbringing. This article looks at the considerations for the international relocation of children and answers the question, what is a leave to remove application?

If a parent is looking to move overseas and intending that the children move with them, they will need the other parent’s agreement to make the move, or alternatively an order from the court. A court application is for what is termed ‘leave to remove’ i.e.permission to take a child out of the jurisdiction of England and Wales.

Trying to reach a collaborative or mediated agreement is preferable to court. Such an approach would give the other parent time to adjust to the idea and the opportunity to contribute to a plan.Through either of these processes it would properly be a joint decision and one therefore most likely to benefit the children moving forward.

The law and the guidance on leave to remove applications

A court approaching an application for international child relocation should note:

• The welfare of the child is the court’s paramount concern.
• There is no presumption in favour of either parent.
• There is a distinction between ‘principle’ and ‘guidance’. Regard can be given to guidance in previous cases provided that overall that particular case is decided on what is in that child’s best interests.
• The welfare principle is key; the court’s enquiry is the same whether there is a primary carer and or if there is a shared care arrangement. It is not about the labels given to child arrangements.

The court should reach its decision by undertaking a global, holistic evaluation of the options. This requires it to:

• conduct a welfare analysis of each realistic option for the welfare of the children its own merits and in the context of what the child has to say;
• conduct a comparative evaluation of each party’s plans; and
• if appropriate, scrutinise and evaluate each parent’s plan by reference to the proportionality of the same; (considering the proportionality of the parents’ respective plans is necessary to ensure that the decision reached is not open to challenge under article 8 of the European Convention of Human Rights).

What this means when preparing a leave to remove application

Within the context of the evaluative approach, it is clear that the success of an international relocation case is heavily dependent upon the facts of each case.

In preparing a case, the following (non-exhaustive) list of points should be considered in conjunction with the welfare checklist set out in s1 Children Act 1989. The list is in no particular order:

• the nationality, domicile and habitual residence of the parties;
• the child’s cultural background and ties, including the history of where they have lived and the frequency and quality of time spent in other countries and the languages that they speak;
• the child’s personality and interests;
• significant people in the child’s life other than their parents;
• the connection of each member of the family to the place of the intended relocation;
• the reason for the application including an assessment, where appropriate, of whether there is a motivation behind the application that undermines the reason;
• the ‘infrastructure’ in place in the UK and in the proposed new country in terms of income, accommodation and practical support;
• the intentions and feasibility/practicality of promotion of time spent with the other parent and how it will be facilitated;
• the other parent’s ability to relocate and whether there is any question that the ‘staying parent’ may not remain in the UK in the foreseeable future;
• what the child wants;
• the impact on the child’s education, whether this is the right time for the move and whether this is a good moment to transition between schools/educational systems;
• the impact on the child of a potential reduction in contact; and
• the impact on both parents, to the extent it could impact on the child.

Leave to remove applications. Advice from abroad should be sought

Unless a family law practitioner is dual-qualified in both the UK and the country the parent wishes to relocate to, their advice alone will be insufficient. The parent should also consult a lawyer in the destination country for advice on immigration/visa requirements; the extent to which any English order will be recognised; and the merits of obtaining a ‘mirror order’ (this is an order made in one country which reflects the original order made in another country).

This advice is an important part of strengthening a case,enabling parents to understand as early as possible any potential difficulties in enforcement. An overall understanding of the legal position may also help to allay the fears of the other parent.

What should I do?

Advice to anyone contemplating such a move who anticipates resistance from the other parent should research the resources available for the children in the new location and start building up a picture of what their life would be like. In advance of any discussions with the other parent information should be gathered and detailed consideration given to how it is presented to the other parent. It will also provide the other parent with the opportunity to do their own research into schools, nurseries and neighbourhoods.

Conversely, a parent who thinks their former partner is making decisions about their children’s future without seeking agreement, or without providing full information about the arrangements, can consider making an application to the court for a prohibited steps order to prevent the children being taken out of the country, either at all or just until proper arrangements have been put in place. These arrangements will include when that parent will see the children if they were to relocate, and, until they have had an opportunity to take advice, what steps can be taken in the courts of the other country to ensure that that court would enforce an order made in England or Wales. Alternatively they could consider whether a ‘mirror’ court order should be made in the country where it is proposed that the children are to live.

Expert advice from a family law solicitor should be sought at an early stage of the planning/ discussion and signposting to additional support and relevant organisations can be found in this link.

Postscript. Issues arising out of divorce or separation can often prove stressful for the couple and other family members. This article written by Dylan Watkins GP offers a useful overview for those who may be struggling.

David Starkey contributed to ‘Separating With Children 101’ , 3rd edition, (Bath Publishing, 2023)