Removing a Child from England and Wales
This law guide is a comprehensive guide for a parent who wishes to move permanently overseas with their child and has been unable to obtain the agreement of the other parent. It explains the procedure and law applicable to the necessary application to the family court for permission to remove a child permanently from England and Wales, and is intended to enable a parent to deal with the application themselves, without incurring the not inconsiderable cost of legal representation.
It deals with what should be contained within the application and the essential issues which will be considered by the court. It includes a summary of the decided cases relevant to the various types of removal applications, including the position on an application relating to a move within the UK.
Removing a child from England and Wales
A child may not be removed from the jurisdiction of the courts of England and Wales to live permanently in another country without either the written consent of both parents with parental responsibility or the permission of the court.
To do so will be a criminal offence carrying a penalty of imprisonment. Abroad will include Scotland and Ireland. A child, for these purposes, is defined as a minor under the age of 16.
If the removal is not permanent and just for the purpose of a holiday lasting less than
28 days, the position is different:
Where only one person has parental responsibility for a child and there is no
court order in place, then that person has an absolute entitlement to take the
child on holiday abroad;
Where more than one person has parental responsibility, then the permission
of every person with parental responsibility should be obtained;
Where there is a child arrangements order as to residence of the child in
place, the resident parent can take the child on holiday abroad for up to 28
days without the consent of any other person with parental responsibility;
A non-resident parent who wishes to take the child abroad is expected to
agree this with the resident parent.
Accordingly, unless the court has made a child arrangements order deciding that your
child should live with you, you should notify and try to obtain agreement from the
other parent before taking your child on an overseas holiday.
If you intend to emigrate and take your child to live permanently overseas and are
unable to obtain the written consent of the other parent with parental responsibility,
you must ask the court for permission. The court will consider the motives for the
move and whether the issue has been fully thought through. Even where agreement
with the other parent is possible, it may be appropriate to obtain an order by
consent from a court. This could be a requirement of the immigration department of
the country where you wish to reside.
The application will be under section 8 of the Children Act 1989 for a specific issues
order. Applications are considered very carefully by the courts, and where the
application is contested may take between 6 and 9 months to resolve.
The court will consider carefully:
the proposals of the applicant wishing to remove the child;
the effect of a refusal of permission on the application and child;
the effect upon the child of restricted contact with the other parent and
the motivations of the parties and proposals to maintain contact.
The welfare of the child will be the primary concern of the court. However, it will also
consider the effect on you. The judge will consider the effect that a refusal of leave
would have on you and thereby the child, and they will also look at the effect of
denial of contact on the other parent. For this reason, you must put forward
proposals for contact with the other parent left behind, and try to address the issues
in a reasonable and sensible manner.
It is for you to provide as much detailed information as possible relating to the
contact visits you are proposing. You must also include:
detailed information regarding where you intend to live and facilities in the area;
detailed information relating to schools you are proposing for the child to attend;
detailed information regarding health care available;
details of the opportunities available to the child.
Success is dependent upon you making realistic, practical and persuasive proposals
about where you are going and how you and the child shall live, and the
arrangements for the parent left behind to maintain contact.
As with all Children Act applications, the court must apply the ‘welfare checklist’.
When doing so, the court will be concerned about the child’s long-term welfare
rather than short-term disadvantages. It will often be a difficult balancing act.
Removing a child from England and Wales 3
Temporary removal 3
Permanent removal 3
Internal removal 4
The application of the welfare checklist 5
Established principles 6
The approach of the courts 7
Applying to the court 8
Opposing an application to remove 9
The Decided Cases 11
Employment abroad 13
Return to native country 14
Better way of life 18
Case notes 19
Father’s permission to remove 58