What is international child relocation/leave to remove?
International child relocation cases are disputes between parents, which arise after the breakdown of a marriage/relationship, when one parent (nearly always the children’s mother) wants to move to another country with the children and the other parent objects to the proposed move.
If the parents are unable to agree what should happen between themselves, the mother will need to make an application to the court for permission to relocate the children abroad. This is often referred to as “leave to remove” and the court will have to determine what should happen.
These cases are regarded as amongst the most difficult decisions for family law judges to make. The situation is often very finely balanced between the two parents, which underlines the importance of obtaining good quality legal advice from family lawyers, such as ourselves, with particular expertise and knowledge of such cases.
Often such cases involve parents who have never previously had any serious disagreements about the upbringing of their children and such situations can cause enormous distress to the parents, their wider family and friends and, most importantly, the children involved.
How do these situations arise: reasons for wanting to relocate abroad
The mother may wish to return to her country of origin, where she feels that she will have the practical and emotional support network of her family and friends, which she needs as a single parent (these are referred to as “going home” cases).
The mother may have a new partner or spouse (with whom she may have other children, or be expecting a child) who comes from another country, or has a new job opportunity in another country, and she wants to join her new partner in that country (situations where the mother’s new partner/family is the main driver for the proposed relocation).
The mother may want to move abroad to take up a specific opportunity, such as a new job or promotion opportunity, for herself there.
There are also cases where a mother wishes to move to another country with which she has no close connection but which she feels offers a better quality of life or better life chances for herself and her children than where she is currently living. It is generally felt by lawyers that it is more difficult to obtain permission to relocate children abroad in the latter, “lifestyle”, type of situations.
There are also some cases where the mother’s main motivation is to get herself or her children away from the children’s father. In general, the courts look very unfavourably on such cases, unless the father represents a serious risk of harm to the mother and/or the children (which rarely arises in practice).
How are these cases decided: the current law
No parent may remove a child permanently from the UK without the written agreement of the other parent (and/or any other person who has legal parental responsibility for the child), or the permission of the court.
This is so even if the other parent does not have legal parental responsibility for the child, which all mothers have automatically and most fathers also have, because interference with the other parent’s “rights of custody” (which need not necessarily include the daily care and control of the child) will amount to child abduction, which is likely to result in an order for the summary return of the child to the UK under the Hague Convention on Child Abduction 1980 and will usually also be a criminal offence.
There is only one legal principle applicable in international relocation cases: that the welfare of the children concerned is the court’s paramount consideration (known as “the welfare principle”). The court must carry out a global holistic evaluation of the welfare of each of the children by reference to specific factors set out in the Children Act 1989 (known as “the welfare checklist”).
All the options put forward by the relocating parent must be weighed against the competing options of the other parent. In particular, there must always be an analysis of the potential benefits to each child of the relocation to the new country measured against the erosion in the quality of the children’s relationship with the parent who will be left behind in the event of their relocation.
No assumptions are to be made in favour of a mother seeking to relocate children abroad and fathers are now likely to be successful in opposing a proposed international relocation than used to be the case.