Relocating or Removing Children from the Jurisdiction

A child who lives in the UK, should not be removed from the jurisdiction without the permission of all those who hold parental responsibility or an Order of the Court.  The only exception to this rule is where the child is being removed from the UK for a period of less than one month by a person named in a Child Arrangements Order, as a person with whom the child is to live. 

In any other circumstance, if a parent wishes to take the child outside of the UK, they will either need the consent of the other person(s) who holds parental responsibility or permission of the Court. 

If you believe your children are at risk of being taken abroad without your permission, it is essential that you seek specialist legal advice at the earliest possible opportunity. 

Also, if you want to take your children to live overseas and you do not have permission from the other parent, you will need to seek approval from the Family Court. 

Our Family team are specialists in Child Law and our team has the expertise in assisting in such matters.

Advice on the unlawful removal of a child, to go on holiday

In the event that the removal from the jurisdiction is for the purpose of a holiday, the person who is seeking to take the child on holiday can make an application to the court for a Specific Issue Order and in the absence of any health, safety or welfare issues, the Court is likely to grant permission for that holiday to be taken by the child. 

If there is some risk of abduction and retention in the jurisdiction to which leave is being sought to remove the child, particularly where that is non-Hague Convention country, additional considerations will be taken into account by the Court so as to consider whether taking into account that risk it is still in the best interests of the child to go on the holiday.  

Do parents need permission to relocate abroad with a child?

If the application for removal from the jurisdiction is not for a holiday, but for a permanent move, the court will approach the case in a very different manner and will be guided by the following principles:

• The court’s paramount concern will be the welfare of the child; is it in the best interests of the child to continue to live in the UK or would the best interests of the child actually be better served by the relocation?
• Will the relocation interfere with the relationship between the child and the parent who will remain in the UK and if so, how will that relationship be preserved and nurtured?
• The court will consider the welfare checklist to determine whether the matter should be dealt with under Section 8 of the Children Act as a Specific Issue Order or under Section 13 of the Children Act as a removal from the jurisdiction case.
• The guidance of the Court in Payne v Payne [2001]* should be viewed in context and should no more than guide the Judge in identifying potentially relevant issues.  Further details are given below.
• In assessing paramount welfare, the court must carry out a holistic and non-linear comparative evaluation of the plans proposed by each parent, to determine which would actually meet the best interests of the child.
• In addition to the human rights of the parent wishing to move, the court must also factor in the human rights of the child to maintain personal relationships with and direct contact with both parents on a regular basis.  The human rights of the child are likely to take priority over those of the parents.
• The court must consider the proportionality of the interference with the human rights of the child. 

The children’s wishes and feelings are only one factor among many that the court will take into account. 

In most relocation cases, an independent CAFCASS report on the children’s wishes and feelings will be secured, although whether such a report is needed will be at the discretion of the Judge hearing the case.

Where there is more than one child involved in the relocation, the court will consider separately the interests of each child in light of their ages, status of development and the nature of their needs.

Do parents need permission to relocate within the UK

Whilst the parent wishing to relocate within the jurisdiction may not have any obligation to apply to the Court for an Order under Section 13 of the Children Act for relocation abroad, the Applicant is likely to still have to defeat an application made by the parent who wishes the child to remain in the UK for a Prohibitive Steps Order. 

Because the welfare of the child is the governing principle in both internal and international relocation cases, the approach the court takes to them is likely to be the same. 

Removal cases are extremely difficult and finely balanced.  Weighing up the human rights of both parents and the child or children will always be extremely difficult. 

If the parent with care of the child wishes to relocate, then it is crucial that they put together a comprehensive plan for the child’s care in the new location, which details how the children’s education, housing, socialisation, connections with family, physical and emotional needs will all be met and how they will help and facilitate the preservation of the relationship between the child and the parent who will be left behind. 

When a parent wishes to relocate, whether internally or outside of the UK, it is crucial that an application is made to the court if it is known that the other parent opposes the move.  This is particularly the case in international removal cases, where removal from the jurisdiction will amount to child abduction if the child is taken without the knowledge and consent of all persons who hold parental responsibility for them.