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Moving abroad with the children

31 May 2022

What is international leave to remove?

When a marriage or relationship breaks down and there are children involved, one parent (usually the mother) may wish to move abroad with the children. If the other parent (usually the father) does not agree to the children relocating to the new country, the parent wishing to move must apply for permission from the court, in order to be able legally to relocate the children. This is known as “leave to remove”, or international relocation.

These cases can be very emotional and difficult for all concerned. They often involve loving parents who are equally committed to their children, who have never previously experienced serious disagreement between themselves about the arrangements for their children.

Court proceedings for leave to remove should be seen as the last resort. Such applications are very stressful, expensive and destructive of future cooperative parenting. Parents should do everything they can to try and agree matters between themselves. If discussing matters directly with the other parent seems too daunting, it can be helpful to talk matters through in family mediation, using a mediator who is experienced in international relocation cases. Collaborative law can also be a helpful way of dealing with the difficult issues that arise, in a non-confrontational way. At Burlingtons we are able to offer both options for parents who do not wish to go to court, as well as acting for parents in court proceedings for leave to remove.

What are the usual reasons for a parent wanting to relocate abroad?

  • “Going home” cases - where a parent wants to return to her country of origin, where she will have the practical and emotional support of her family and friends after the breakdown of her marriage/relationship.
  • “New partner” cases - where a parent has remarried or is in a new relationship with a partner or spouse who lives in another country, or has their job or business relocated abroad, and she wishes to live with her new partner in the new country.
  • New employment opportunity - where a parent wishes to move abroad to take up an employment opportunity there.
  • “Lifestyle” cases -where a parent wants to move to another country with which she has had no previous close connection but feels will provide a better quality of life, or better life chances, for herself and her children.

How does the court decide applications for leave to remove?

The guiding legal principle in leave to remove cases is that the welfare of the children involved is the court’s paramount consideration (“the Welfare Principle”).

The court must carry out a global holistic evaluation of the welfare of each child, by reference to specific matters set out in the Children Act 1989 (known as “The Welfare Checklist”), involving an analysis of all the welfare options, followed by evaluation of the positives and negatives of each option.

All the options put forward by the relocating parent must be weighed against the competing options of the other parent. In particular there must 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 the relocation.

The Welfare Checklist factors are as follows:

  1. the child’s ascertainable wishes and feelings (of increasing importance with the child’s increasing age and maturity);
  2. the child’s physical, emotional and educational needs;
  3. the likely effect on each child of any change in his/her circumstances;
  4. the child’s age, gender, background and any relevant characteristics;
  5. any harm the child has suffered, or is at risk of suffering;
  6. how capable each of the parents is in meeting each child’s needs; and
  7. the range of powers available to the court in the proceedings.

There is an important distinction between the Welfare Principle (which must be followed) and judicial guidance to help judges decide the case, which is not legally binding. Judicial guidance given by the Court of Appeal in the case of Payne v. Payne in 2001, is still of relevance to help judges identify the most important factors to be taken into account in deciding the welfare question, the weight to be attached to them and to promote judicial consistency in decision-making, but not so as to dictate a particular outcome to the case. Each case must be decided on its own particular facts and it is up to the judge hearing each case to decide the extent to which the Payne guidance assists him or her.

The outcome of applications for leave to remove have become much more finely balanced and difficult to predict since 2011, when the Payne guidance (with its emphasis on “the importance of the emotional and psychological well-being of the primary carer”) began to be reinterpreted, in subsequent decisions of the Court of Appeal. Now no assumptions are to be made in favour of mothers seeking to relocate children abroad and consequently fathers opposing relocation are more likely to be successful than used to be the case.

This underlines the importance of parents obtaining expert specialist legal advice in international relocation cases.

Maeve O’Higgins, Family Law Partner

As well as being a very experienced family lawyer, Maeve is also a family mediator and collaborative lawyer. She has particular expertise in dealing with international child relocation, having dealt with court proceedings involving relocations as far afield as Australia and New Zealand, USA, United Arab Emirates, Hong Kong and China. Her experience as a mediator includes an international child relocation from Indonesia to New Zealand, and a “domestic” relocation from England to Scotland.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Maeve O’Higgins or write to us using the contact form below.

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