What happens when one parent wants to leave the country – but the other parent doesn’t

This is a post by Sarah Phillimore

If you are a person ‘connected to a child’ who is under 16 – i.e. you are that child’s parent – and you take the child out of the jurisdiction of England and Wales without getting permission from the other parent, then you could find that you are committing the criminal offence of child abduction.  See the Child Abduction Act 1984. However section 4 gives you a defence IF you have a child arrangements order which sets out that you are the person the child lives with AND you are out of the country for less than a month.

Therefore, if either parent wants to leave England and Wales – to either return to their home country or start a new life with a new job etc – that parent will either have to get the agreement of the other parent or a court order.

Such applications to court are known as ‘leave to remove’ applications. There is no specific provision in the Children Act dealing with relocation cases. The child’s welfare is paramount and the court will go through the welfare checklist.  It may need to ask CAFCASS to provide a section 7 report to help it determine the weight to put on the different items in the checklist.

The case of Payne v Payne [2001] for a long time was the key authority in this area, but there was increasing concern growing about how the courts interpreted this case and a perception that too much weight was being put on the disappointment of the parent who wasn’t allowed to leave.

Therefore, there has been a shift in more recent case law to considering more carefully the impact on the child of the loss of direct contact with the parent who remains behind.

Each case turns on its own facts and case law can be no more than a guide. The court will be keen to understand the motivations behind the move. Is it a genuine wish to return to a familiar place, with possibly more family support? Is it a wish to take up a job offer that represents a real opportunity? Or is the move possibly a tactic in an acrimonious relationship breakdown to prevent continuing contact between child and parent?

There have been a number of cases decided since Payne v Payne. One useful case is S v G (Relocation to Russia) [2015] EWFC 4 which considered if there should be any distinction between those cases where before the suggestion of relocating, one parent had ‘primary’ care or where both parents had more or less equal time with the child.

The legal principles can be summarised in this way

  • The child’s welfare is the court’s paramount consideration.
  • The court is to have regard to the welfare checklist in section 1(3) of the Children Act 1989.
  • Courts should not categorise cases in terms of concepts of shared or primary care but should use the facts of the case and the answers arrived at in consideration of the checklist to
    • describe the arrangements for care on the ground as they have been;
    • as they are at date of the hearing; and 
    • as the parties intended them to remain had it not been for the question of relocation.

In applying these principles the court will examine:

  • The applicant’s proposals for relocation; a ‘going home’ case may be less arduous than an entirely new venture;
  • The applicant’s motives – in particular is a significant motivation to exclude the other parent?
  • The motives of the respondent – are any objections truly child centred?
  • The impact of relocation upon the respondent.
  • The impact of refusal to permit relocation upon the applicant, insofar as this impacts upon the child.

How do you assess motivation?

In essence, by examining how well planned and researched any proposed move is. What plans have been made for where the child will live and go to school? What language will the child be speaking? What plans for contact with the other parent have been made? How easy is it to travel? If direct contact isn’t going to be possible more than a few times a year, what other arrangements such as Skype can be put in place? Is the child simply to too young to be able to benefit from that kind of indirect contact?

it is clearly very important to make an application to relocate in good time. These applications are unlikely to be dealt with in less than six months so if a move is planned to coincide with a new school term, it is important to give enough time for the court process to conclude.

Similarly if a parent is objecting to a move even when remaining in the UK would mean the other parent facing poverty, insecure accommodation and lack of support for e.g. then this will inevitably impact on the weight the court gives to the objections against relocating.

An example of a case where relocation was refused

See Re R (A Child – Relocation) [2015] EWHC 456 (Fam). The court set out a number of reasons why the mother’s application failed. The child was 2 1/2 years old and had been born in America following IVF treatment of a donor egg and the father’s sperm. The mother wished to leave the UK and go to Hong Kong. No issues were raised about the father’s ability to care for the child and the court noted a strong bond between the. On the facts of this case, the court rejected the view of CAFCASS that it was a ‘finely balanced’ one.

  • The father’s work commitments made it almost impossible for him to travel to Hong Kong even for short periods.
  • No argument was made, nor would the court have accepted such an argument on the evidence, that the mother was isolated or lonely in England.
  • The court didn’t accept the mother’s arguments that remaining in England would cause her financial hardship, for example, accepting the father’s evidence that there were a number of agencies that the mother could have approached for work but had failed to do so.
  • The court concluded that the mother had presented barriers to the father spending time with the child, some of which disappeared without any explanation and she had been disdainful of the father when making holiday arrangements. 
  • The mother’s proposals for contact between the child and father following relocation were insufficient to make up for the loss in the relationship. This harm to the child would be compounded by the likely sense of abandonment upon the child finding out, as he will in the future, that the father was his only natural parent.

 

Conducting a comparative analysis of standards of living in different countries

What if one parent argues that the living conditions in the country of relocation are significantly inferior to those in the UK?  Unless the situation is so dire the that – for example, the Foreign Office advises that a particular country is not safe, i argue that the English court can go no further than to scrutinise the information offered by the parent wishing to relocate, to be satisfied that the parent has made reasonable plans to meet the child’s basic requirements for accommodation, education and health care.

An attempt by the English court to carry out an analysis of standards of living in two very different countries is inappropriate for two main reasons:

  • this exercise risks diverting the court’s focus away from the welfare of the particular children before them, as demanded by the Children Act 1989. The court must consider what advantages/disadvantages of the move pertain particularly to them. For young children the focus will be largely upon the quality of the relationships they can sustain with their adult carers. A variety of factors go into assessing quality of life in various countries, not all of which have relevance to the experiences of the particular children before the court.
  • The overriding objective for the court under both the Family and the Civil Procedure Rules is to deal with cases justly but proportionately. To conduct a comparative analysis of life in  different countries would be a lengthy and expensive exercise, which is likely to require possibly contested expert evidence and consideration of a variety of reports from the United Nations and other organisations. By argument with analogy as to how the court have approached attempts at ‘comparative country analysis’ in immigration/asylum cases, in Re A (Care Proceedings: Asylum Seekers) [2003] 2 FLR 92 the court found that absent any established risk to the children on being returned to their country of origin, it was an abuse of process to continue care proceedings to prevent the parents and children being returned.

The Hague Convention 1996 and Mirror Orders in the foreign court.

The Hague Convention provides that all contracting states shall recognise by operation of law all measures taken by the authorities of another contracting state. Therefore, if the parent wants to relocate to a country that has ratified the HC, a ‘mirror order’ may be made in that country’s court,  permitting the respondent to take enforcement action if the applicant does not abide by its terms.

An example of a case where a mirror order was made when relocating to South Africa can be seen in the case of Re MM (A Child: Relocation) [2014] EWFC B176

5 thoughts on “What happens when one parent wants to leave the country – but the other parent doesn’t

  1. Angelo Granda

    A Parent’s View.

    QUOTE: Therefore, if either parent wants to leave England and Wales – to either return to their home country or start a new life with a new job etc – that parent will either have to get the agreement of the other parent or a court order : UNQUOTE.

    If one parent takes a child abroad for resettlement without a Court Order, the complaining parent should report it immediately to the Police and demand action. It is a CRIMINAL OFFENCE under the Child Abduction Act. It would be a total waste of time reporting it to the Local Authority Social Services or to the C.S. Neither has the power to prevent the offender leaving the Country , taking the child nor the power to order them to return. Only the Police can close borders and gain extradition orders.
    Thus all involved have a duty to report criminal offences including child-abduction to the Police. I doubt if any honest Family Court lawyer will disagree with that ( at least not with a straight face).

    It is a fact of life that criminals commit such offences when they can get away with it. Were their opponent/s silly enough not to report the crime, they will can away with it. Whether they abduct the child with malice or in what they see as his or her ‘best interests’ is irrelevant to the Criminal Law except in so much as it may be a mitigating factor to be considered when sentencing the culprit.
    One wonders what would be the position if the offender were to blackmail or illegally coerce the ex-partner to sign an agreement of some kind. Without supplying a copy and without signing it themselves. This would be rather like a voluntary S20 regularly misused by L.A’s domestically.
    Will the Police and lawyers then announce there is no cause for action,no malice involved ?
    Or will they bring the offender to justice?

    1. Anais

      I wonder if a mother could take their child if the father who’s on the birth certificate and therefore shares ‘parental responsibility’ has never contributed nor played a role of father to the child? If there is a history of domestic violence, abuse, harassment to the mother, does she still need to seek his permission to leave? If the child who’s approaching 11 years old suffers from anxiety at the mention of her father? How does one move to be with their loved one if this situation?

      1. Sarah Phillimore Post author

        If the father has no relationship with an 11 year old child then I think its vanishingly unlikely that this father would be able to stop you leaving. But if he has PR then you will need his agreement or a court order.

  2. SWATI PRAKASH

    if the father is controlling and prevents mother from teravelling back to home country after bringing her abroad and mother has lost her finances, career and goodwill due to this kind of harm and child has also suffered domestic violence at hands of father, mother has suffered from rape and domestic abuse at hands of her husband, and has gone into refuge, why does court put prohibited steps against mother from leaving country with child in the end if she has agreed to child contact after pressure from solicitors of father to provide direct contact and to expose their whereabouts – why is the law so harsh against mothers when so many many mothers are victims of DV and rape on a daily basis and children are also hit or even killed by voilent dads, eg my child’s father is delusional and a rosk to his child as per psychaitric assessment, yet court places PSO to jail me if I take child to India and I am unable to leave although nothing is wrong with me and I went to refuge based on C&F assessment that child is safe with mother in refuge because mother has to safeguard child from father who is danger to mother and child both. Why the court does not take council assessments seriously enough and also psychiatric assessments – I am not sure why court is so rigid that a mother cannot return back to her home country if she was forced to live in UK by her husband against her will? I do not even have money to hire solicitors as I only have criminal injuries compensation funds that are too less to have a long case funded and it will destroy my peace of mind and my ability to raise my son to lose all my money on solicitors and legal aid costs as it is all means assessed and not just merit based and courts take so long. I think courts should know that domestic abuse and marital rape of mothers and children is very very very common and not pin down mothers from abroad who are in forced relationships and taken to prison in a country that is not of their choice.

    1. Sarah Phillimore Post author

      I am sorry to hear this – but if the court has made findings based on the evidence it has heard, I am afraid you are stuck with that unless you can appeal. It is very difficult for parents who have left their homeland when a relationship breaks down but the court will try to prioritise the child’s relationship with both parents, if its safe to do so. That often means that the freedom of movement of at least one of the parents has to be curtailed.

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