Leave to remove from the Jurisdiction

Surjit Verdi

by Surjit Verdi

It is an offence for a parent or any other person with Parental Responsibility to remove the child from the UK without either the consent of all persons with Parental Responsibility or order of the court. If a child is removed without consent this would amount to child abduction and is a criminal offence.

There is an exception to the above and that is where one parent has a Residence order. In such cases that parent may take the child abroad for a period of up to one month without permission from the other parent or leave of the court.

If a parent wishes to move abroad permanently and any other person with parental responsibility does not consent then an application would need to be made to the court for leave to remove a child permanently from the jurisdiction of England and Wales.

The main reason that a parent may wish to relocate abroad are:

  1. Where a parent is seeking to return “home” after a relationship/marriage has broken down.
  2. A new spouse/partner from another jurisdiction and therefore wishes to move abroad to live with him/her in that country.
  3. A new job opportunity for either the parent or partner/spouse.
  4. A lifestyle change – a parent may feel that they have better lifestyle opportunities in another country for themselves and their children. 

The most important authority in such cases is Payne v Payne which sets out guidance on a proposed application for leave to remove from the jurisdiction.

  1. The application must be genuine and must not be motivated by a desire to end contact between the child and the other party.  The application would need to consider the practical proposals of relocation and would include the applicant considering and providing details on housing, income, schooling, support available and details of relationships if this is the reason for the move. 
  2. The detriment to the other party for example if it is mother’s application to relocate, the effect refusal would have on her or if granted, the effect this would have on the father. 
  3. The party making the application would need to put forward sensible proposals for contact with the other parent.  The other party would need to be seen to promoting contact as this would be a major consideration of the court. 
  4. The child’s welfare would be paramount and would be considered in accordance with the welfare checklist. 

The more recent case of K v K 2011 stated that although guidance is laid out the welfare of the child is the paramount consideration of the court.