Leave to remove
A child from the UK
Can I take my child on a holiday abroad without the other parents permission ?
Can I Take My Child Abroad without Father’s Permission?
It’s at this time of year that people start thinking about summer holidays and booking whatever is available after the mad rush. When you are thinking of taking your children abroad though, there is a lot to think about, especially when there are child arrangements in place.
Determining who has parental responsibility is key. If both parents have parental responsibility, and there are no child arrangements orders or any restrictions in place, then neither of you can take the child abroad without the written consent of the other person with parental responsibility. If they refuse to give consent, you will have to apply to Court for permission to travel abroad with them. These applications can take time, so apply several months before the holiday.
If however you have what used to be known as a ‘Residence Order’ then you can travel abroad with the child for 28 days without permission. This is the same for a mother, who alone has parental responsibility. She can take her child abroad without permission if there are no other orders or restrictions in place. In practice I recommend that you agree the arrangements in advance though with the other person with parental responsibility.
There is nothing to stop the other parent from applying at Court to stop the child travelling abroad. To appease the other parent, I always advise that at the beginning of each school year (September) you consult with the other parent and agree dates for you both to travel with the child throughout the year. This should not be restricted to the summer holidays.
Make sure arrangements are made for handing over the child’s passport and forward these documents to the other, ahead of the holiday:
a. Dates of departure and arrival
b. Accommodation details
c. Flight details
d. Contact numbers
Make sure that your written permission will stand up at the airport. I have had parents in tears before because they are checking in at the airport with the children and the “permission” they thought they had was insufficient for border control to allow them to travel with the child. Some airports are more thorough than others, but I always advise that you obtain a letter from the person with parental responsibility allowing them to travel and ensure that letter includes their contact details. Always bring your child’s birth certificate to show your relationship with the child and if necessary, any Court Order.
Be careful when your surname is different to the child’s. You may need your marriage certificate or decree absolute to show your previous surname, or a change of name deed, if applicable.
I advise that you also check the age limit up to which the person is considered as a child in the country you are travelling to. Check with the embassy or consular office where necessary as that may avoid the above having to take place.
So in summary, happy holiday planning-but beware of the above and if in doubt, speak to the other person with parental responsibility, to avoid any headache later.
Leave to Remove
What are leave to remove applications?
Leave to Remove applications are typically made to the court by the resident parent, a parent with shared residence or the parent named in a child arrangements order as the person with whom a child lives, to seek the court's permission to emigrate with the children.
The applications are brought under section 13(1) of the Children Act 1989 which reads:
13 Change of child's name or removal from jurisdiction
(1) Where a child arrangements order is in force with respect to a child, no person may -
(a) cause the child to be known by a new surname; or
(b) remove him from the United Kingdom;
without either the written consent of every person who has parental responsibility for the child or the leave of the court.
Your consent must be sought for the children to be removed from the United Kingdom if you have parental responsibility for the children. Your consent should also be sought if there is a Children Act case pending before the family courts (Re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146). There is common law guidance that consent to remove the children from the jurisdiction should also be sought where the father has regular contact with the children (Re V (Jurisdiction: Habitual Residence) [2001] 1 FLR 253), but be aware that this is under UK law, which will be of limited or no use once the children have left the UK.
If a child is removed from the UK without your consent or the UK courts´ permission, and you hold legal parental responsibility for the children, then the removal is illegal. Reunite is a charity that specialises in assisting parents whose children are unlawfully removed abroad and we recommend you contact them. If you are concerned that your children may be illegally removed abroad, you should contact them as a matter of urgency. Their helpline number is 01162 556 234.
While leave to remove applications are often granted, the court's involvement may still be useful, as arrangements for contact should be agreed before the emigration goes ahead. This may involve increased holiday time for the parent who remains in the UK, decisions concerning who covers the cost of travel and accommodation costs, that there must be mirror orders (orders for contact made in the country of relocation as well as in the UK), and other measures to help ensure contact goes ahead as ordered.
Be aware that once the children are habitually resident in a foreign country, enforcement of orders can be very difficult and costly. You are likely to have to travel to the country and seek a contact order in the country where the children live. This will involve legal, travel and accommodation costs.
We provide a one page checklist to assist you in applying to the court for an emergency prohibited steps order to help prevent the children´s unlawful removal.
What guidance does the court follow?click to collapse contents
The case law set out in Payne v Payne [2001] EWCA Civ 166 sets out guidance which the court should consider if the emigrating parent is the primary carer. In that case, Lord Justice Thorpe set out the two hurdles which the resident parent should satisfy before the merits of their application are further considered:
That their motives for the move are genuine;
That their plans are well thought through.
It should be noted that it was held in the case K (Children) [2011] EWCA Civ 793 that the guidance in Payne v Payne is simply guidance, and the only binding principle on the judiciary from that case was that the child's welfare is the court's paramount consideration.
The case law set out in F (Child) [2012] EWCA Civ 1364 does however point to certain parts of Payne v Payne being useful guidance (in all relocation cases, whether or not there is a primary carer or parents share care), drawing attention to the following paragraph in Payne:
40. However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent´s rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother´s proposals are necessarily compatible with the child´s welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother´s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child´s life. Then ask is the mother´s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father´s opposition: is it motivated by genuine concern for the future of the child´s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child´s relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child´s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
Note that the judgment in F (Child) does not require that any one matter should carry great weight (as was implied in paragraph 41 of Payne v Payne).
The most recent summary of guidance from the various authorities following the review of Payne in 2011 can be found in NJ v OV [2014] EWHC 4130 (Fam). Mostyn J repeats:
The welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.
The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable and helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them.
The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.
The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):
Is the mother´s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life?
Is the mother´s application realistically founded on practical proposals both well researched and investigated?
What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
Is the father's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?
What would be the extent of the detriment to him and his future relationship with the child were the application granted?
To what extent would that detriment be offset by extension of the child's relationships with the maternal family and homeland?
The guidance should not be applied rigidly as if it contains principles from which no departure is permitted.
There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer.
Arguments as to what label should be applied to the case by virtue of either the time spent with each of the parents should be avoided.
Circumstances which assist the Applicant?click to collapse contents
Circumstances which assist the likelihood of a Leave to Remove application being granted include:
where the emigrating parent is the primary carer.
it can be demonstrated that refusal of permission will be sufficiently emotionally or psychologically harmful to the primary carer that it impacts on their care of the child (this is commonly referred to as the distress argument). It is important to note though that this is just one factor, among others, which the court will consider. Prior to a review of guidance in this area of law in 2011, this matter carried ´great weight´ when determining leave to remove cases.
the primary carer or their new partner seeks to return to their country of birth and/or has family in the country they wish to emigrate to.
there are no concerns as to the primary carer´s ability to provide adequate childcare or about their new partner (if they have one).
the plans for the move are well thought through.
there is no intention to disrupt the relationship between the child(ren) and the other parent.
a support structure exists to assist the primary carer with the child care in the new country (although this is not essential).
the plans for continued contact with non-relocating parent are practical and affordable.
the primary carer has remarried and the child is in a new family structure.
the children have step-brothers / sisters within the primary carer´s new relationship (the Court would rarely agree to the ´new family´ being divided).
the child has sufficient maturity to understand what impact the move would have on their life and wishes to emigrate.
the relocating parent is clearly the majority carer. It is our experience that the lower the number of nights per week or fortnight that the non-relocating parent has their children stay with them, the higher the difficulty in preventing a leave to remove, and vice versa. It should be noted though we have also seen cases where leave to remove was refused as the father´s contact was minimal, and there had not been an opportunity for the child to get to know their father which was the reason for refusal.
Circumstances which assist the Respondentclick to collapse contents
Circumstances which may assist someone in defending against a leave to remove application
that the care of the children is essentially shared between the two, separated parents.
the greater the amount of parenting time spent with the non-relocating parent, the higher the hurdle for relocation, although shared care is not an automatic bar to relocation being granted.
that the relocating parent seeks to reduce or prevent the child's relationship with their non-relocating parent due to continued hostility. A history of broken court orders and/or frustrated contact, refusal to co-operate over schooling/medical matters may assist in demonstrating questionable motive.
that the plans for the move and the child's subsequent care are not practical. Questions need to be asked such as:
a) Who will care for the child if the resident parent (or child) is ill?
b) What childcare plans exist? How do these compare to the support structure in the UK.
c) Who will pick the child up from school?
there exist concerns about the relocating parent's ability to provide consistent care.
there are concerns regarding the relocating parent´s mental health.
that a strong bond exists between the child and non-relocating parent.
the child is sufficiently mature to understand what impact the move would have on their life and wishes to remain in the UK.
Essential Considerationsclick to collapse contents
After much experience of leave to remove cases, we recommend the following be considered during the non-relocating parent´s case preparation:
Application for a Prohibited Steps Order: If there is any risk the relocating parent will emigrate without your or the court´s consent. This should include a request that the children´s passports be seized. See our separate guide:
Be Realistic: If there is little prospect of stopping the relocation, you may achieve more by offering your consent at an early stage in return for generous contact/shared travel costs etc.
Cross-Applications for the children to live with you in the UK: If you are contesting the relocation, you should consider whether you could accommodate the children in the event that the other party will emigrate regardless of the court´s decision, but the court accepts that relocation is not in the children´s best interests. You should offer practical proposals which cover housing, schooling, support in the event you or the child is ill (e.g. who would take the child to school), and most importantly contact proposals for the relocating parent. We recommend you make these generous (in the event you fail and the court grants leave to remove, these reasonable and generous proposals might be deemed suitable in reverse). To apply for the children to live with you in the event the other parent relocates, you would apply for a child arrangements order naming you as the person with whom the children live.
Your Arguments: Lead with your child focused arguments. Focus on how life would change for the child, detailing first what the children uniquely enjoy in the UK, and the impact of relocation on their relationships, schooling, loss of friends etc.
Wishes and Feelings: Ensure your arguments consider your children´s wishes and feelings, even if just to say whether you think them sufficiently mature to understand the implications involved in such a dramatic change to their lives.
K.I.S.S.: Keep your arguments simple. Be careful of being distracted or diverted from your case strengths by overloading arguments with minor and unnecessary points which will not sway the outcome. Don't get caught up in criticising the relocating parent unless there are genuine safety concerns.
Plan for Success and Failure: It is essential to have considered what you will do if you lose. Have a fall back position (e.g. How could you manage international travel arrangements? What is your holiday entitlement? When are school holidays in the relocation country? What phone contact is possibly? How would travel and accommodation be paid for? Could the children visit you in the UK? What about contact arrangements for the extended family?).
Undertakings: We know of one case where the court had the relocating parent sign an undertaking to support contact. While the contact order was not enforceable, a breach of undertaking was a criminal matter as contempt of court, and therefore the High Court had the power to order the relocating parent's return to the UK for a breach... which they did! This is a rarely seen option, but of interest.
A Mirror Child Arrangements (contact) Order: Some countries are party to international agreements which make child arrangements orders made in the courts in England and Wales valid in other countries. Where emigration is to a country which is not a party to these international agreements, it is sensible to have an order made in the foreign court which is a copy of the order made here (this is called a "mirror order"). The two main international agreements relevant to contact orders are the Brussels II Revised Regulations (covering all European Countries other than Denmark) and the Hague Convention 1996. You should not need a mirror order for a country which is part of Europe and signed up to the Brussels II Revised Regulations (all have except Denmark) or which are a party to the Hague Convention 1996 (which came into force in England and Wales on 1/11/2012). If leave to remove is granted, and the relocation is to a country which is not a party to the Brussels II Regulations or Hague Convention 1996, then we strongly recommend you ask that a mirror order be made as a PRE-condition of relocation. For the UK based parent, this will afford your relationship some protection, but be aware we have seen too many cases where a judge states the mirror order should be made after the relocation has taken place, and it simply doesn't happen. On 1/11/2012, the 1996 Hague Convention came into force in the UK, which should make contact orders made in England and Wales, enforceable in countries which are a party to the 1996 convention. If no mirror order is made, and the UK courts make a child arrangements order where the children go to a country outside of Europe (or to Denmark) or to a country which isn't party to the Hague Convention 1996, the order is worthless. Countries which are party to the 1996 Hague Convention can be found here).
Signed Section 41 Certificate: If leave to remove is granted, and the relocation is to a European Brussels II Member Country, a section 41 certificate (as per section 41 of the Brussels II Revised Regulations) should be signed by the judge making the child arrangements order (but often this gets forgotten and some judges have never heard of this form). Download s.41 certificate form.
Contact Arrangements: What is practical in terms of your annual holiday entitlement, cost of travel and accommodation (who should pay for this and is it within your financial means), where contact should take place, direct and indirect contact.
Bonds: If the relocating parent can afford this, it may be worth asking the court to order that a sum of money to deposited in a UK bank account by the relocating parent to be released in the event that enforcement of orders is required abroad. A charge on any UK based assets owned by the relocating parent might be another option. Such arrangements would depend on the parent´s financial means, the circumstances of the case and judicial discretion.
Where in the public domain, we provide case law (the full text of judgments) on our Leave to Remove Case Law section. As well as brief summaries of judgments, you'll find the full text in both html and pdf formats, to read on screen or download and print for court.
You should also understand, if leave to remove is granted, when the foreign court would gain jurisdiction over future decisions following the relocation and refer you to our jurisdiction case law library:
Temporary Leave to Remove
Where a residence order is in force, or a person is named as a person with whom the child lives within a child arrangements order, the person in whose favour the order was made may take the children abroad without the consent of anyone else for a month. Where no such order exists, or where the parent with residence wishes to take the children abroad for a longer period, in the absense of agreement from each other holder of parental responsibility, they must seek the court´s consent (by way of a specific issue order).
If the non-resident parent, or any other holder of parental responsibility objects to the children being taken abroad / and or has fears that the children may not return to the UK, they should apply to the family court for a prohibited steps order.
In respect of temporary leave to remove, where this is opposed and there is a risk of non-return, Lord Justice Thorpe gave guidance in the case Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084:
the magnitude of the risk of breach of the order if permission is given;
the magnitude of the consequence of breach if it occurs; and
the level of security that may be achieved by building in to the arrangements all of the available safeguards.
Further guidance was given in R (A Child) [2013] EWCA Civ 1115:
"The overriding consideration of the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make an order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course"
Further, clarification was given in respect of the need for expert evidence:
"Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order."
Please also refer to our dedicated case law menu:
Temporary LTR from Jurisdiction Case Law