The Legal Framework for Leave to Remove
Under the law in England and Wales, a parent with parental responsibility must seek permission to relocate their child permanently to another country.
- If the other parent has parental responsibility: Written permission must be obtained.
- If the other parent does not have parental responsibility: While permission may technically not be required, relocating without seeking it risks child abduction proceedings in both civil and criminal courts.
Best Practice: Always secure written consent from the other parent, even if they lack parental responsibility. If consent is not granted, apply to the court for leave to remove.
Changing Attitudes in Leave to Remove Cases
The courts in England and Wales have historically had a liberal reputation for granting leave to remove, often prioritising the wishes of the primary carer.
However, this approach has evolved:
- Increased Focus on Both Parents
- Recent Court of Appeal judgments emphasise the importance of maintaining a child’s relationship with both parents and their extended family.
- The balance has shifted slightly, making relocation applications more challenging.
- Role of CAFCASS
- CAFCASS officers prepare reports on leave to remove applications and are now more likely to recommend refusal or take a neutral stance, leaving the decision to the judge.
- Shared Care Arrangements
- If parents share care in substantially equal proportions, relocation is less likely to succeed.
- Re Y [2004] 2 FLR 330 has become a critical precedent, particularly in cases involving shared care.
- The Payne guidance is still considered but plays a lesser role in shared care cases.
Key Considerations for the Court
The court’s primary consideration is always the child’s best interests, assessed case by case. Key factors include:
- The child’s welfare and their need for a meaningful relationship with both parents.
- The practicality of maintaining relationships if relocation is granted.
- Whether the relocating parent has proposed a detailed, realistic plan to facilitate contact between the child and the left-behind parent.
Opposing a Relocation Application
If you are opposing a relocation application:
- Demonstrate the Impact on the Child: Argue that the move would harm the child’s welfare, relationships, or stability.
- Highlight Shared Care: If applicable, emphasise the shared care arrangement and its benefits.
- Request Robust Orders: Ensure any relocation order includes:
- A practical contact schedule.
- Provisions for the relocating parent to return with the child for visits.
- Consideration of travel and accommodation costs for the left-behind parent.
Practical Arrangements for Relocation Cases
If relocation is granted, it is essential to:
- Secure a detailed contact schedule for the left-behind parent.
- Negotiate how child maintenance may be offset by the costs of travel and accommodation.
- Consider the legal system in the destination country to ensure contact arrangements are enforceable.
A shared residence order in the new jurisdiction may help maintain the left-behind parent’s role in the child’s life.
Conclusion
International relocation cases are among the most emotionally charged and legally complex in family law. The evolving approach of the courts emphasises the importance of balanced care and maintaining meaningful relationships with both parents. Whether seeking leave to remove or opposing it, securing robust, practical arrangements is vital to ensure the child’s best interests are safeguarded.
For guidance on relocation applications, contact our experts or consult our resources to navigate this challenging process.