The prospect of living abroad is becoming more attractive to many us for a number of reasons. If you have children you may assume that because they have always lived with you and you are their main carer that you could take them with you. This is not the case.

Who is required to provide consent and why is this important?

Each parent that shares parental responsibility must agree to the removal of the children to another country. If any parent wants to remove their child from the jurisdiction of England and Wales whether or not they have parental responsibility it is advisable to obtain the written consent from the other parent. This is because of the possibility of child abduction proceedings being commenced by the other parent which could include criminal sanctions.

What if consent is refused?

Should the other parent refuse to consent you will need to make an application for permission to remove your children from the jurisdiction.

What factors does the court consider?

The leading authority on relocation cases is Payne v Payne. The following are guidance as to factors to be considered by a Judge when deciding these cases:-

  • The child’s welfare is paramount and where appropriate, the wishes and feelings of the child
  • Whether there is a genuine motivation for the move and not an intention to bring contact between the child and the other parent to an end
  • The practicalities of the relocation proposals should be scrutinised with great care, including those of ensuring continued adequate contact with the other parent
  • The effect upon the applicant parent and the new family of the child of a refusal of leave is very important
  • The effect upon the child of the denial of contact with the other parent and in some cases the wider family is very important
  • The opportunity for continuing contact between the child and the parent left behind may be very significant

However, as a result of recent case law the court may now adopt a more ‘holistic’ approach to matters.

How we can help

This is a very complex area of law.  If you are considering moving away and taking your children with you or if you are a parent worried about the real possibility of your children being removed to another country please seek legal advice from Sonali Obhrai. She has gained specialist accreditation with Resolution in Private Law Children. She can be contacted on 01902 904 060.

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