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Section 13 of the Children Act prevents a resident parent from taking a child out of the country for longer than one month (28 days) without the consent of the other parent or persons with PR.

The courts tend to apply the same principle when there is no Residence Order in force, since the law does not specifically provide for that circumstance. Case law indicates that even where the other parent has no Parental Responsibility, they may still be deemed a de facto primary carer with ‘rights of custody’; see Re B (A Minor) (Abduction) [1994] 2 FLR 249 and Re O (Abduction: Custody Rights) [1997] 2 FLR 702.

To take a child out of the country permanently, therefore, the parent must have either the written consent of all those with PR or, where that is not possible or consent is withheld, they must apply to the Court for ‘leave to remove’ (LTR).

Applying for Leave to Remove

If you are thinking of taking your child(ren) to live abroad permanently we would impress on you that in more than half of cases contact with the ‘left behind’ parent breaks down entirely. We would urge you, therefore, to take this step only if the relationship has already irrevocably broken down.

If you want to take your child out of the country for more than 28 days you will need the written consent of all others with PR for the child. If that is not forthcoming you will have to make a Specific Issues application to the Court for Leave to Remove (LTR).

Make sure you have one or other in your hand before making any other arrangements, such as booking flights, etc. Don’t rely on the verbal consent of a parent who may throw a spanner in the works at the last moment. Be prepared for court proceedings to take 6 months or more.

The application is made for a Specific Issues Order under Section 8 of the Children Act or under Section 13 and is made using Form C100 and you will have to pay a fee of £200.

In contrast to contact applications, there is no requirement to seek mediation.

If the country to which you are taking the child is not a Hague Convention country the case must be referred to the High Court.

An LRT case involves overriding the parental responsibility of the respondent parent and the applicant therefore has to show why the Court should do this. The overruling principle is that if the proposed move is ‘reasonable’, for the respondent to withhold consent is ‘unreasonable’ and leave to remove should only be refused if it can clearly be shown that the child’s interests are incompatible with those of the resident, applicant, parent. Incompatibility of interests will depend on two questions:

1. The effect of removal on the child’s relationships with those left behind, and

2. Conditions in the host country.

Deciding the first question will exercise the judge’s discretion, but the guidance is that refusal based on this should be ‘unusual’. It can be seen from this that the presumption to allow a leave to remove application is a strong one.

The Criteria

The Court will grant leave to remove if the 8 criteria defined by Butler-Sloss in Payne can be satisfied. Your task therefore is to show that they are satisfied.

1. The welfare of the child is always paramount, so all aspects of the welfare checklist must be considered, and the child be given the opportunity to express his feelings.

Your guide throughout must be the paramountcy principle and the elements of the welfare checklist.

You must show that the benefits of removing the child from the jurisdiction outweigh any damage caused by moving the child away from teachers, friends, other relatives, and, of course, the other parent.

You must show that your child fully understands all the implications of the move and has been given the opportunity to express his views and hasn’t been bullied.

2. There is no presumption created by s.13(1)(b) in favour of the applicant parent.

Simply because you have residence does not give you an automatic right to remove the child from the jurisdiction; you still have to prove your case.

3. The proposals for relocation must be practical and include measures for ensuring continued adequate contact with the other parent.

You must show you have considered all the implications of removal from the jurisdiction fully, including:

a) Proposals for the child’s living arrangements.

b) Arrangements for the child to remain in contact with the other parent. How will they travel? Where will they stay? Who will pay for this?

c) Arrangements for supplying the child’s financial needs.

d) Finalised arrangements for the child’s education – is there a firm offer of a school place? Is this the right place for your child? Is your child at a point in her education where a move will be disruptive? Did you involve the other parent in the decision? Were they consulted on alternatives? Have you sent them full details of the school including prospectus and syllabus?

e) Is your child involved in other activities – sporting or artistic, for example – which will be disrupted? Will she be able to continue these? What about sports teams, drama societies, orchestras, etc.?

f) Can your child speak the language of the new country? What measures will be taken to ensure she learns?

g) Have you registered your child with a doctor, dentist, optician, etc. Does your child have any special health needs?

h) An account of your reasons for wishing to move abroad – family, marriage, job, etc.

i) Evidence of the financial viability of the plan, including firm job offers.

j) Evidence of the accommodation, including address, pictures and estate agent’s particulars.

k) Evidence of links to the new country – family, etc.

l) Evidence of social opportunities and network.

m) Evidence that Court Orders made in the UK will be recognised and enforced in the new country.

n) Expert evidence of the psychological and developmental effects of removal on the child.

4. Consequently, the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

You must demonstrate genuine reasons for wanting to move your child abroad and that this is not merely an attempt to obstruct contact. A history of obstructed contact may count against you.

5. The Court must consider the effect upon the applicant parent and the new family of the child of a refusal of leave.

You must show that a refusal of your application will impact psychologically on yourself and your parenting ability. Show how it will damage your career prospects and financial status. Show that it will affect members of your extended family, perhaps your partner’s children, etc.

6. The Court must consider the effect upon the child of the denial of contact with the other parent and in some cases his wider family.

Ideally you need to show that contact between the child and the other parent has broken down and that the other parent is no longer involved.

7. The Court must consider the arrangements for ensuring continuing contact between the child and the remaining parent.

You must show detailed, costed arrangements for continuing contact both with the ‘left behind’ parent and with the extended family. They must be practical and affordable.