The question of where and with who a child should live may arise on separation or divorce between parents who have parental responsibility. A solution can be agreed upon mutually by parents via written consent, however in some cases judicial assistance may be required.
- Most common circumstances
- Who can remove the child from the UK and for what length of time?
- What can I expect in the Court?
- Global holistic welfare evaluation
- Approach to welfare where there are two or more siblings
- Orders for children over the age of 16
- Making relocation conditional on financial support
- How will the Court decide relocation applications?
- The Applicant is in a new relationship or has remarried and the new partner or spouse either lives abroad or works abroad.
- The Applicant has received an offer for employment abroad
- The Applicant wants to return to their native country or emigrate to a country where their family has settled.
- The Applicant wishes to emigrate to a country on the basis that the foreign jurisdiction offers a better life.
A child who is subject to a Child Arrangements Order cannot be removed from the UK without prior written consent of each person holding Parental Responsibility or with the Court’s permission. However, a child can be removed for less than a month without permission if they are being removed by the person named in the Child Arrangements Order as the person with whom the child is to live with.
If a parent possesses Parental Responsibility but is not named on the Child Arrangements Order as a person with whom the child is to live with they cannot remove the child without consent or permission as it would be wrongful removal. In this circumstance the left-behind parent could bring an application to the Court, under the 1980 Hauge Convention for the summary return of the child.
Removing a child from one part of the UK to another, does not require prior written consent or the Courts permission because section 13(1)(B) of the Children’s Act 1989 requires the child to be removed from the UK.
The Courts must grant or refuse the application and the risks in every case are often high. On one hand it is the distress of the refusal for one parent and on the other the possible disruption of the relationship between the non-resident parent and children, if application for leave is allowed.
In every case the Court must determine the application in accordance with welfare principle where the Court will consider whether it is in the child’s best interest for the application to be granted. Therefore, the welfare checklist, contained within section 1(3) of the Children’s Act 1989, is considered.
The Court will also consider whether the applicant has a genuine desire to relocate and whether it is realistic. The application is unlikely to succeed if the court considers the application to be motivated by the desire to prevent or limit a relationship between the non-resident parent and the child.
Case of Payne v Payne provided a guidance as to how applications for leave should be approached:
- The child’s welfare is always paramount
- Section 13(1)(b) of the Children’s Act 1989 does not create a presumption in the Applicant’s favour but reasonable proposals of a parent with a residence order can hold significance.
- The proposals must be scrutinised for the Court to be satisfied that there is a genuine motivation for the relocation, and it is not driven by the intention to end contact between the other parent and the child.
- The effect of the application being refused on the Applicant and new family of the child is very important.
- The effect of the child being deprived of contact with their other parent is very important.
- The opportunity for ongoing contact between the child and the parent left behind may be very important.
Court has restated that an evaluation of the child’s interests and evaluation of where the child’s interests lie are both determined by the welfare checklist.
In a global holistic evaluation, it is essential a welfare analysis of all options is conducted before the Court. Each option will be evaluated to analyse and weigh its pros and cons before it is compared against the alternative option.
By adopting this approach, each option will be considered on its own merits and will prevent the left behind parents’ proposals from being disregarded or given less importance.
It will be difficult to encapsulate these evaluations in a linear judgment, although this will be taken into account by appellant Courts when considering whether a trial judge has fallen in error.
The Court of Appeal has considered whether the welfare of each child must be considered individually. This was evident in the case of Re S (Relocation: Interests of Siblings)  where the Court of Appeal said that the judge has fallen in error by not considering the interest of each child separately.
Court has exercised restraint in making orders for children aged 16 and over as it considers it to be inappropriate and futile to make orders which conflict with the wishes of the older children.
Section 9(6) and 7 of the Children’s Act 1989 intend to prevent the imposition of inappropriate requirements onto older children. Therefore, in these circumstances the Court will not make an order unless it considers that doing so would be beneficial for the child than not making an order. However it is worth remembering that the Court will not hesitate to intervene, regardless of the child’s age if it is not in the best interest of the child.
Permission to relocate may be conditional on the parent relocating. They would be obliged to make financial provisions for the left behind parent to establish an overseas home to maintain their role in the child’s life.
Such an order will not be feasible in majority of the cases but may be possible when the parent relocating expresses a commitment to maintain communication between the children and the left behind parent.
The only principle these cases should be decided on is in accordance with the welfare of the child.
The Court undertakes a holistic welfare evaluation to determine the child’s best interest.
Each case will be determined on its own facts.
The Court will resist attempts to categories these cases on the basis of the time the child spent with either parent or the label given to their daily care arrangements.
Making the application
If the Application is made under Section 8, the child’s welfare will be the paramount consideration and the Court will regard the welfare checklist when it makes, varies or discharges a specific issue order.
Permission to remove a child permanently from their jurisdiction to a country that is signatory of the Hauge Convention or an EU member state, will typically be allocated to a District Judge. However, if it is a factually or legally complex case, it may be allocated to a circuit judge.
FHDRA - First Hearing Dispute Resolution Appointment
Once the Application has been issued, the Court will then allocate a First Hearing Dispute Resolution Appointment, which is a hearing where the Court will narrow the issues of each party and determine whether a resolution is possible by way of a settlement. However, if the parties are unable to reach an agreement, the Court will narrow the issues, and Order how the matter is to proceed and could direct that further evidence is collected which could include the provision of a CAFCASS report, or for Witness Statements to be produced by parties in preparation for the final hearing.
DRA - Dispute Resolution Hearing
If matters cannot be resolved at the First Hearing Dispute Resolution Appointment, the Court may direct a further hearing, namely the Dispute Resolution Appointment. At this hearing, the Court will identify and narrow the key areas of dispute, hear further evidence or make further directions. In some instances, this hearing can also be used as a final hearing.
At the final hearing the Court will assess the evidence provided by both parties and make a Final Order with detailed judgment with application of the welfare checklist.
In order to discuss issues relating to your children, and exactly how you would like us to help, please contact FisherWright Solicitors, we are happy to discuss your concerns.
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