Moving away or to live abroad with children (leave to remove)

The law protects a child’s right to a relationship with both (or all) of his or her parents. That means that there are rules surrounding whether a parent can move abroad or to another part of the country to ensure both parents’ interests are taken into account.

Do I need my ex’s permission to move abroad (or away) with our child?

You cannot unilaterally take your child to live abroad if they are habitually resident in England and Wales and you share parental responsibility with another parent. If you wish to move out of the country, then you either need the other parent’s consent or the court’s permission.

You can decide to move within England and Wales and technically the other parent’s permission is not required. However, in reality, an internal relocation can cause greater disruption for your child than a move, say, within Europe, both in terms of miles apart from the other parent and travelling time. If your child’s other parent opposes an internal move, he or she can apply for a prohibited steps order to prevent it. An internal relocation proposal would then end up before the family court, and the court would consider similar factors to an external relocation in reaching a decision.

How does the family court decide whether to give permission to a parent to move abroad (or away)?

These cases are invariably difficult and emotive. Decisions are binary – either won or lost in terms of the outcome for each parent with little room for compromise - and that can come at a huge cost to the child, the other parent and their extended family. The court requires clear and detailed evidence in any ‘leave to remove’ case and no-one would be advised to make an application lightly without considering all the implications. Invariably any application will involve a report being prepared by a CAFCASS officer who will make a recommendation to the court about what is best for the child, following interviews with all key parties, including the child if he or she is old enough. The parents will also have an opportunity to file detailed narrative statements together with supporting evidence.

 Any parent considering a move should consider:

  • The level of contact, both direct and indirect, with the other parent which can realistically be managed, including holidays and taking account of the logistics of travel.
  • The further the move the more imaginative the arrangements may need to be, taking advantage of all technological advances
  • Providing detailed information about the new home and country, including healthcare, education, day-to-day life and, if necessary, geo -political stability
  • Explaining financial and employment considerations
  • The motivation for moving

In determining any application the judge will have the child’s welfare as his/ her paramount consideration, bearing in mind the ‘welfare checklist’ as set out in the Children Act 1989. This checklist is a good guide to the thought process the judge will have to go through in reaching a decision. These factors are significant but the weighting of each will change in each case according to the child’s age and understanding. The checklist is:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
  • Their physical, emotional and educational needsThe likely effect on them of any change in their circumstances
  • Their age, sex, background and any characteristics that the court considers relevant
  • Any harm which they have suffered or are at risk of sufferingHow capable each of his parents and any other person in relation to whom the court considers the question to be relevant is of meeting the child’s needs
  • The range of powers available to the court under the Children Act.

Each case is determined on its own facts, whilst taking account the law and previous cases. The judge will take a holistic approach and make a comparative evaluation of each party’s case, with the welfare of the child at the forefront of their mind. In our experience these are applications rely hugely on marshalling the most persuasive evidence and focussing on the child’s welfare at all times.