Removing children from Jurisdiction

If you wish to emigrate outside England and Wales, taking your child or children, you will usually need the agreement of the other parent.  Where this agreement is refused, an application can be made to the Court for permission to remove the children from the jurisdiction. The procedure is similar to the one described under Procedure in cases about children.

The basis for the Court’s decision is, as always, the welfare of the child.

The Court has to balance the effect of refusal of permission on family of the parent that the child lives with, against the reduction in contact between the child and the other parent that usually results from a decision to emigrate.

There are a number of concerns that the Court will have, which will need to be addressed when making the application.

Matters considered by the Court when removing children from Jurisdiction

The first of the matters considered when removing a child or children from Jurisdiction, will be the motivation for the proposed move.  For instance, the decision to emigrate may result from an employment opportunity or a new relationship with someone from the other Country. The Court will wish to be satisfied that the motivation for the move is not simply to reduce contact between the child and the other parent.

The Court will also wish to ensure that the proposals to emigrate are practical.  Details of where the child is to live, where they will go to school and what, if any, friends or family they may already have in the new area will need to be provided.  The timing of the application is therefore very important.  You need to have all of these details available for the Court but at the same time you do not want to be contractually committed to renting or buying a house or starting a new job in case the application is refused.

Because of the balancing exercise that the Court has to carry out, the Court’s other concern will be in relation to contact.  If the child has a good relationship with the other parent and their wider family, the Court will want to know how this is to be maintained.  Needless to say, technology such as mobile telephones, webcams and emails can help but you will need to tell the Court how often you intend to bring the child back and who is going to pay for these trips.  You will also need to tell the Court whether it would be possible for the other parent to visit the child in the Country that you are moving to.

It is often the case that the other parent’s response to an application for leave to remove will be to ask the Court to make an order that the child should live with them.  However, unless the existing arrangements are for shared residence or unless there is already a dispute as to which parent the child should live with, the mere fact that you have asked the Court for permission to take the child abroad will not result in the Court ordering that the child should live with the other parent, even if your request is refused.

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Rayma Collins

Partner & Head of Family Law

Naomi Hayward

Senior Associate & Collaborative Lawyer