Not only a business phenomenon, in recent years globalisation has increasingly been shaping family dynamics. International marriages, for example, are becoming more common – an exciting development in many ways. The downside is the very real complications that arise if things go wrong and children are involved.

Often an ex-pat parent finds themselves intent on returning to his or her home country, or one parent marries a new spouse who lives in another jurisdiction. To remove children legally requires an application for leave to remove. Not surprisingly, there has been a significant amount of case law generated on the subject of leave to remove and the conditions necessary for granting it.

Legal background

The law states that no one parent can remove their child from the UK without the written consent of the other parent, save where permission is granted by the court, namely, leave to remove.

Failure to receive the court’s permission before taking a child out of country amounts to child abduction, regardless of whether the removal was intended to be temporary or permanent. The only exception to this rule is where one parent has a residence order in his or her favour, which allows the nominated parent to take the child abroad temporarily, usually up to one month.

Considerations for the court

When the parents do not agree on the terms of the removal, the court assesses the case with an emphasis on the welfare of the child. The ascertainable wishes and feelings of the child must be evaluated, as is their physical, emotional and educational needs and the likely effect that the change in environment would have on them.

Payne v. Payne [2001] held that an application must be genuine (i.e. not just a desire to exclude the other party) and based on sensible and practical proposals. Meanwhile, opposition has to be genuinely motivated by the welfare of the child. The risk of harm to the opposing parent’s relationship with the child must be balanced with potentially improved circumstances overseas.

Recent case law

Two recent cases are instructive. NJ v. OV [2014] concerned a mother attempting to relocate to Sweden with her child, which the father opposed. He had successfully argued for the return of the child two years earlier when the mother retained the child after a professed holiday to Sweden.

The court reiterated the principle that the welfare of the child was paramount, and rejected the argument that the law in this area was muddled and in need of reform. On the facts, it was found that the mother’s prospects were likely to be significantly better in Sweden, and on that basis the child’s prospect of a healthy and safe life were better there than in England.

C v. K [2014] involved a plea for temporary removal, with the court requiring satisfaction that the removal’s advantages outweighed the risks to the child’s welfare. The judge was of the opinion that the chance to experience their parents’ homeland was in the best interests of the children, yet he refused to grant leave to remove on the basis that it was unclear whether the mother would in fact return home after the trip. The father convinced the court that the threat of abduction was too high if the mother left the country, even on an interim basis.

Comment

Single parents moving abroad with children must seek legal advice lest they risk child abduction charges. Parents opposed to their child being moved to a new jurisdiction should seek legal advice to prepare an effective response to block unwanted removal.