Removing children from England and Wales: what do separated parents need to know?

Removing children from England and Wales without the required permission from everyone with parental responsibility, or the Court’s authority can have serious consequences, ranging from enforcement orders to criminal proceedings.

This article explores the key legal requirements for individuals looking to take children abroad, whether that be for a holiday or permanent relocation, and what can be done by the individuals that do not consent to their children being taken abroad.

The permission requirements.

The specific requirements shall depend on the circumstances and whether the removal is intended to be temporary or permanent.

Temporary removal

Temporary removal, such as a holiday, can be for up to 28 days without requiring the permission of each party with parental responsibility if there is a child arrangements order naming the individual as the person with whom the child is to live. If there is no lives with order in place then prior written permission must be obtained from everyone with parental responsibility.

If an individual fails to get the prior permission from everyone with parental responsibility and proceeds in removing the child, then this could amount to child abduction under Section 1 of the Child Abduction Act 1984. This would be the case even if the removal is temporary.

Permanent relocation

Permanent removal, i.e. moving a child to live abroad, will require either the prior written permission of everyone with parental responsibility or the approval of the court via a specific issue order.

The application to the court should be made before the children are removed from the country. A failure to do so will constitute an abduction and can result in criminal charges under the Child Abduction Act 1984 and the family court making an order for the return of the children. Should this occur, it will be harmful to the individual’s position in any subsequent court proceedings involving the children.

The practical steps for relocation applications

Consider the practicalities of relocation

Before making any arrangements to relocate and starting any discussions on the proposed relocation, the practicalities of relocation must be considered. This will involve researching the proposed relocation and gathering evidence of:

• Examples of the proposed housing in the new country.
• Where the children will go to School and information about the quality of their education.
• Information about the healthcare system in the new country; and
• The relocating parent’s financial stability whilst living abroad, including details of their employment and the affordability of the relocation.

There will also need to be careful consideration of how the children will maintain their relationship with the other individuals with parental responsibility, the arrangements for indirect contact, how often they will have direct contact and the logistics for travel for that contact.

Communicate early

Open discussions with the other individuals with parental responsibility regarding the proposed relocation can reduce unnecessary conflict and possibly avoid the need to apply to the court for permission.

Attend mediation

If direction discussions are not feasible or there had been a breakdown in communication, the assistance of a mediator can help resolve disputes amicably.

In family proceedings the attendance at mediation is compulsory before initiating court proceedings, unless the exclusions apply, such as urgency or where there is a history of domestic abuse.

Submit the application to Court

If the other individual(s) with parental responsibility refuses to provide the required consent the party that wishes to relocate will need to apply for a specific issue order.

The factors the court applies

Welfare checklist

When the court considers either an application for a specific issue or a prohibited steps order the welfare checklist detailed in Section 1 (3) of the Children Act 1989 shall be applied. This will require the parties to satisfy the court on the following:

• The children’s ascertainable wishes and feelings. The weight given to this will depend on their age and their level of understanding.
• The children’s, physical, emotional, and educational needs.
• The likely impact of the relocation on the children’s life and their relationship with the remaining parent.
• The ability of both parents to meet the child’s needs post-relocation, including the support system in place, the plans for the housing, education and healthcare.

The reason for relocation

The individual looking to relocate will need to demonstrate that the relocation has been well-planned and is motivated by what will be in the best interests of the children and not for some other reason, such as a desire to alienate the other parent.

Defending an application for relocation

If the remaining parent does not agree to the relocation and the relocating parent has applied for a specific issue order, they will have the opportunity to defend the application for relocation.

If the relocating parent has not submitted their application to the court and it is believed that they will proceed with the relocation without the required permission, the remaining parent can apply for a prohibited steps order to prevent the children from being removed.

When defending a specific issue order to remove or bringing a prohibited steps order to remain the remaining parent will need to satisfy the court that the relocation will not be in the best interest of the children and that a relocation will have a negative impact on the children’s welfare. Factors which would demonstrate this include the loss of the close relationship with the remaining parent, or any connected family members such as half or step siblings and grandparents and inadequate arrangement having been made for the children abroad.

In urgent circumstances where there is a risk of an imminent and unlawful removal from the jurisdiction individuals can seek an urgent prohibited steps order without notice. Additionally, an emergency port alert can be made through the police and the border authorities, which would signal that there is a potential abduction occurring and would prevent the children from being able to leave the UK.

Conclusion

Removing children from England and Wales requires thorough planning and careful consideration of the children’s needs and those of all individuals with parental responsibility. For any parent that is considering removing their children out of the jurisdiction, whether that be temporarily or permanently, it is vital that you ensure that you are aware of and comply with the legal requirements.

If you are navigating these complex issues or are seeking legal advice to ensure compliance with the law, please contact a member of our family team to book a free initial 45 minute consultation.