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Children Issues – Removal from the Jurisdiction

 

In today’s society it is very common for children to have parents who are of different nationalities.  What happens when those parents separate and one parent wishes to return to live in the country that they are from can often cause problems that can lead to court proceedings.

Any parent who wishes to leave the jurisdiction of England and Wales with their children must seek the permission of everyone who holds parental responsibility for the child. Usually that is the other parent.  If the other parent does not give permission, what happens next? An example follows:-

A mother and a father have separated, the mother is a European national and the father is British.  The mother wishes to return to her country of birth with their two children, the father does not agree.  In these circumstances the mother must make an application to the court requesting the permission of the court to move the children permanently to a foreign country.  What does that application involve?

In every children case before the court, the court has a duty to consider the welfare checklist as set out in the Children Act 1989.  In every case a child’s welfare is the court’s paramount consideration.  An application to remove from the jurisdiction is no different; the court must consider the welfare checklist, the impact on the children and balance the wishes of the mother to move away, against the wishes of the father to stop this happening.

In addition, in cases where the court is considering whether to allow a parent to move with their children abroad on a permanent basis, the court will also ask themselves the following questions about the request:

a) 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?
b) Is the mother's application realistically founded on practical proposals both well researched and investigated?
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) 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?
e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?

f) To what extent would that detriment be offset by extension of the child's relationships with the maternal family and homeland?

Therefore in each and every case the more details the court is given about the wish to relocate, the more likely the court will consider the application in a favourable light.

What does this mean in practice?  If you wish to relocate you will need to produce to the court detailed information setting out where you will live; where the children will go to school; what the support network is in the area you are moving to; what employment will you be able to obtain; proposals for the children to spend time and speak with the other parent.  This list is not exhaustive and in each case the specific details will depend on where the proposed move is to.  

This is a complicated area, fraught with emotions for all parties, and if you are either considering moving abroad or you believe your former partner wants to move abroad, it is important that you do seek specialist legal advice.

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