A well respected, award winning social enterprise
Volunteer run - Government and charity funded
We help 50,000 people a year through divorce

01202 805020

Mon/Fri 9am-6pm       Sat/Sun 2pm-6pm
Call for FREE expert advice & service info

Leave to remove applications are almost invariably made by mothers and granted in an estimated 90% of cases; this is despite the growing acceptance of shared residence by the courts. If you are to prevent leave to remove in your case you will need to look first at the principles which govern leave to remove cases, then at the arguments which have been successful in securing leave to remove, and finally at the arguments you must use to prevent it.

In a Leave to Remove application a parent applies to the Court for leave to take the child out of the jurisdiction. If the resident parent is making an application to the Court they are showing a certain respect for the rule of law which suggests they are prepared to accept the Court’s decision and to follow appropriate procedure; this potentially gives the respondent an opportunity to prevent removal and their single chance to maintain contact with their child.

Some applications for removal follow an unsuccessful abduction or cases where a child has been abducted and then returned under the Hague Convention. In such cases the Court will not take into account the abduction, or consider that the abducting parent has behaved unacceptably.

Many resident parents will move considerable distances in order to thwart contact; moving across the Scots border is particularly popular because Scotland operates under a different legal jurisdiction and English parents are then forced to attend court in Scotland. Moving to Scotland does not, however, constitute removal from the jurisdiction (due to a legal anomaly), so the leave of the Court is not required.

If the resident parent intends to move away with the children, whether within the jurisdiction or outside it, and you oppose this move, you stand little chance of preventing it – particularly if, as is probable, you are the father. Courts will generally interpret any attempt to stop a mother moving to wherever she chooses – or emigrating – as an attempt to control her or to interfere with her human rights. The Court is very unlikely to see the situation as the mother attempting to prevent contact, however much that may be the case.

You are best placed to fight a leave to remove application if there is established shared parenting or, better still, if there is a shared residence order in place. In that case Hedley’s ruling in Re Y [2004] 2 FLR 330

applies. If there is only limited contact taking place or if you have a contact order Re Y will not apply and you are at the mercy of Payne v Payne (2001) 2 WLR 1826. Your obvious first step is therefore to apply for a shared residence order.

Read the section on applying for LTR. Read the criteria on which these cases are decided; your task is to show that they are not satisfied. If you have allowed yourself to become the contact parent you are at a considerable disadvantage. In the Butler-Sloss criteria the effect of a refusal on the applicant parent is considered as very important, while the effect on the respondent parent of granting leave to remove is not a consideration; there is the clear implication that the child’s welfare is linked to the mental state of the applicant parent but not to that of the respondent parent.

Remember also that despite the Court following these guidelines, the child in Payne v Payne never saw her father again once leave to remove was allowed.

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.

Removal from the jurisdiction is not in your child’s best interests as they are settled at school and moving them away would disrupt their relationships with teachers, friends, other relatives, and, of course, yourself.

The other parent is acting unilaterally, disrupting the child’s well-established routine, and shared parenting with you has been terminated without regard to the child’s best interests.

Has your child been given the opportunity to express his views or is he being bullied into accepting the move? Is he fully able to understand the implications? Bear in mind that if he has been told of the plan to move abroad and is excited about it, any move by you to block the plan may impair your relationship with him. It will certainly upset the applicant, and they may take it out on your child.

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

Simply because the applicant has residence does not give them an automatic right to remove the child from the jurisdiction; they still have to prove their case.

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

You must scrutinise the application using the guidelines and look for weaknesses in the plan.

If any of the necessary evidence is missing or inadequate, challenge it.

Don’t rely simply on attacking the plan for removal, though. You, too, must put forward a comprehensive and clearly thought-through plan regarding how you will care for your children if leave to remove is refused. What will you do if the other parent leaves anyway and dumps the children on you?

Use research to counter the application – for example concentrate on legal issues: is the country a Hague Convention signatory? Does it respect the Convention?

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.

If there has been a history of obstructed contact you can use it to present this application as another development in that. Get the Court to look at the history of contact and use this to undermine the application. Beware, however, that the Court may allow the application in order to rescue the child from a conflicted situation.

Establish that the other parent has no pressing need to relocate (this may be difficult) and that there was no discussion with you to seek viable alternatives. You therefore suspect the other parent’s motives and believe the purpose of the application is to prevent contact.

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

You must challenge the presumption that the effects of a refusal will be devastating to the mother and impair her ability to be an adequate parent.

You must demonstrate the lack of medical evidence that a refusal will damage the mother’s mental health and thus interfere with her ability to parent. Use Re W (Children) [2009] EWCA Civ 160 to show that she will merely be disappointed.

5. 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;

Demonstrate to the Court, using the studies referred to here and the precedent of Payne itself that allowing the other parent’s relocation will effectively erase you from your child’s life.

Get all of your extended family to submit written statements explaining the effect on them of allowing the removal. Can they travel easily, or will they be prevented by ill health, age, other family responsibilities or lack of funds?

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

These arrangements must be practical and affordable. Thorpe’s casual comment in Payne that ‘international travel is comparatively cheaper and more competitive than ever before’ is all very well for those on a judge’s salary, but not if you are on or below the average wage.

If the application is refused, will you nevertheless stay in contact with your child? Many non-resident parents lose contact entirely even when their child remains geographically close, and the prevailing view is that it is their own fault; how will you convince the Court that you won’t respond to a refusal to grant the application by being one of those parents who loses all contact (look at it from the Court’s point of view)?

The Court may, if it desires, impose conditions on any of the orders provided under Section 8 by applying Section 11(7). These include making an order which restricts the respondent’s residence to within the UK.

See if you can find someone to McKenzie for you; never go to Court alone. Because the law is based on preserving the status quo it should favour you but as we know the law does not actually work like that. You will have your work cut out to achieve this because so often in these cases the view taken is that an unhappy mother leads to an unhappy child, and that the child’s best interests are therefore served by keeping the mother happy.

Be prepared to appeal any judgement with which you don’t agree. You’ve nothing to lose, at worst you might buy some more months.

It is unlikely that you will be able to prevent the removal of your child abroad, but essential that you fight such a move. This will almost certainly improve your bargaining position, and you stand a better chance of winning defined contact, shared residence, and shared costs of contact (travel expenses, etc.).