Thursday, October 29th, 2020
You might be asking this question for a number of different reasons. Perhaps you’ve just separated from your partner and want to move back home, to be closer to friends, family and your support network. Maybe you have been offered a job abroad. Maybe your immigration status in this country is uncertain. Whatever your circumstances, there are a number of steps you need to take before packing your bags and they may include a leave to remove application.
Seek the consent of the other parent
The first thing you will need to do is contact the other parent (and anyone else with Parental Responsibility) and see whether they will agree to you moving overseas, out of the jurisdiction of England and Wales, with the child. It is very important that you do this. If the other parent does not consent, you must not relocate out of the UK because if you do so, you will have abducted the child. This is a criminal offence.
You will need to consider whether you might be able to reach an agreement through mediation. Mediation is a forum to discuss matters with an independent mediator who can help you reach an agreement. It is in any event now a requirement that you attend a Mediation Information Assessment Meeting (MIAM) unless you meet one of the exemptions. A MIAM is simply an introduction to mediation and must be undertaken prior to issuing a court application. Arbitration has recently become available for relocation cases to certain countries so you may want to look into whether your case might be appropriate for this.
Make a court application
If you are still not able to reach an agreement about where the child should live, you will need to make an application asking for the court’s permission to move. These are known as ‘leave to remove’ applications.
Under a leave to remove application the court will need to consider whether a move is in the child’s best interests, the welfare of the child being the court’s paramount consideration. Although the ‘welfare checklist’ in Section 1(3) of the Children Act 1989 will not necessarily be considered, its use is commended by the court:
- The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
- The child’s physical, emotional and educational needs;
- The likely effect on the child of any change in their circumstances;
- The child’s age, sex, background and any characteristics which the court considers relevant;
- Any harm which the child has suffered or is at risk of suffering;
- How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;
- The range of powers available to the court under this Act in the proceedings in question.
You will need to prepare a detailed statement for the court, explaining why a move will be in your child’s best interests. As part of the statement, you will also need to set out the practical arrangements for a move. This will include detailed information about housing, education, language, healthcare, employment and lifestyle. You will also need to set out details of the support network you will have in the destination country to support your application. The statement will also need to provide practical proposals for the child’s contact with the other parent.
Amongst other things, the guidance given by the Court of Appeal states that the court should consider whether the Leave to Remove application is driven by an ulterior motive and whether it is founded on practical proposals. The court should also consider the impact refusal would have on the applicant, as well as the impact the granting of the application would have on the other parent.
There will usually be 3 court hearings:
- First Hearing and Dispute Resolution Appointment (FHDRA)
- Dispute Resolution Appointment (DRA)
- Final Hearing
At the FHDRA, case management directions will be made. Usually, there will be directions for statements to be filed (the contents of which are explained above), for Cafcass (Children and Family Court Advisory and Support Service) to file a welfare report and the listing of the matter for a DRA hearing. In some cases, the court will list the matter for a final hearing rather than a DRA.
At the DRA, the court will consider whether any of the issues can be resolved or narrowed. If an agreement cannot be reached, the judge will give further directions so that the case is ready for a final hearing.
At the final hearing, the judge will hear oral evidence from you, the other parent and usually the author of the Cafcass report. The judge will then come to a decision about whether or not permission should be given for you to relocate.
Leave to remove applications should not be pursued lightly – you should seek advice at the earliest opportunity, especially as timing can be crucial. You will need to be clear about the reasons as to why you are seeking permission to move and why such a move would be in your child’s best interests. Clearly, the impact of COVID-19 and the associated travel restrictions cannot be ignored, and you will need to think through how this can be addressed. These are often hard fought and intensely emotive proceedings with a binary outcome.
Eri Horrocks is a Solicitor in Hanne & Co’s Family & Divorce Law Department.