Articles | Removing children from the jurisdiction

Thinking of moving abroad? If you have children there are some important issues you will need to consider which are explored in this article.

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Susan Baker

Sue Baker group contact

In this current financial climate, anyone would be forgiven for dreaming of "upping sticks" and emigrating to somewhere hot and sunny like Australia or Florida.  I hear property is cheap there!  But for those people who are in a relationship second or third time round and who have children from their first relationship, there is something more to think about than how close to the beach our budget will allow.

If you wish to emigrate and take your child out of the jurisdiction you will need to obtain the consent of the other parent.  Should the other parent refuse to consent you will need to make a court application for leave to remove the child from the jurisdiction.

The court's view on this issue is that the welfare of the child is paramount.  Historically, it has tended to be the case that the court will not interfere with the reasonable decision of the parent with care of the child unless there is a significant risk to the child from the proposed move.

The leading authority on relocation cases is Payne v Payne.  In this case the father was British and the mother a New Zealander.  The mother applied for leave to remove their four-year-old daughter to New Zealand.  The court allowed her application on the basis that the relocation would make the mother happier, which in turn would be in the child's best interests.

The father appealed and at the Court of Appeal, Lord Justice Thorpe commented that, "in most relocation cases the most crucial assessment and finding for the Judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability".

However the Court of Appeal stressed that there is no presumption in law in favour of the applicant parent wishing to move the child abroad.  In fact, case law shows that if the court considers that the application is ill prepared, inadequately researched or places insufficient attention to practicalities then it is likely to fail.  It is also likely to fail if it is evident that the parent wishing to move is doing so in order to frustrate contact between the child and the other parent.

The President of the Family Division has set out the following specific considerations which should be at the forefront of the mind of a judge when deciding these cases.  The considerations are:

  • The reasonable proposal of a parent with care wishing to live abroad should carry great weight;
  • These proposals need to be scrutinised with care to ensure that there is a genuine motivation for the move;
  • The effect on the applicant parent and any new family of the child on the refusal to grant leave should also be considered;
  • The effect on the child of a potential denial of contact with the other parent and, in some cases, with their family is very important; and
  • The opportunity for continuing contact between the child and the parent left behind might be very significant.

The courts have extended this list so that where a mother cares for a child within a new family then the impact of refusal on the new family and the stepfather or prospective stepfather must also be considered carefully.

Where there is a concern over future contact arrangements the court could impose conditions.  In one case the court required the resident parent to deposit a large sum of money with the court pending authentication of the English Contact Order by the Chilean Supreme Court.

Consequently, if you are considering moving to sunnier climes, think of the following:

  • It is essential that you set out clearly your proposals for contact between the children and their absent parent to include face-to-face contact (travel arrangements) and indirect contact by way of telephone, web cam, e-mail etc.
  • Be prepared to provide clear and detailed proposals regarding where you intend to live, where the children will be educated and how their health needs will be catered for.
  • Provide as much detail as possible in relation to proposed employment and how you will meet the children's material needs on a day-to-day basis.
  • Focus on the area you intend to live and provide evidence as to the facilities in that area for the children.

This is a very difficult area of the law particularly because of the emotions involved.  If you are thinking of moving away and taking your children with you and you require the consent of the other parent, or indeed if you are that other parent worried about a drastic reduction in your contact following a move, then please ensure you take legal advice.