Leave to Remove

We live in a very multi-cultural society and inevitably there are a variety of relationships where parties come from different countries and have chosen to settle in the UK.  When such parties break up, it can be the case that one or other party wishes to return to their home country and to take the children with them.

This isn’t an issue where both parents agree to the move and consent to it, but where one parent objects, the party wishing to leave needs to apply to the court for an order to remove the children from the jurisdiction. Such applications are made under the Children Act 1989.

The leading case which sets out the principles for the court to consider is Payne v Payne [2001] EWCA Civ 166; there are many cases following which apply the principles or depart from them somewhat, e.g. Re K (Children) [2011]. However, the child’s welfare remains the court’s paramount consideration.

Leave to remove cases can be complicated as the court has to keep the children as the paramount consideration using the Welfare Checklist (CA1989), which include finding out the child’s wishes and feelings – where they are old enough to have a view, the effects on the child of the change in her circumstances, how capable each parent is of meeting the child’s needs and so forth. The court will also consider the guideline principles set out in Payne which include how genuine are the motives of the parent wishing to relocate and whether the plans made (for school, work, accommodation, childcare etc. in the new location) are realistic, as well as the impact on the relationship with the parent who will be left behind.

If you require further advice or assistance with this type of case, please contact us.