A Leave to Remove application occurs when a parent or primary carer seeks the court’s approval to relocate with their child or children permanently outside the jurisdiction, such as from England and Wales to another country. If parents cannot reach an agreement on whether such relocation should occur, the court will make a leave-to-remove decision.
This guide to leave-to-remove applications will provide insights from both viewpoints. First, let’s explore the fundamental principles associated with a Leave to Remove application, which are crucial to consider from the outset.
Leave to Remove: The Essentials
Before a Leave to Remove application is brought to court, several important considerations should be noted:
- Child Welfare Priority: The court prioritises the welfare of the child above the needs, requests, or wishes of the parent seeking to relocate.
- Motivation Scrutiny: The motivation behind the relocation by the moving parent will be closely examined. If the application is perceived as an attempt to sever communication between the “left-behind” parent and the child, it is unlikely to succeed.
- Potential for Contact: The court will assess whether the parent left behind could maintain regular and meaningful contact with the child if the relocation were approved.
- Consequences of Rejection: The applicant must consider the potential implications if the application is unsuccessful.
- Mediation Efforts: Any prior mediation or attempts at mediation between the parents regarding the relocation should be taken into account.
Submitting a Leave to Remove application
- Securing Consent: If you are unable to obtain written consent from the other parent, you should proceed by filing a Leave to Remove (LTR) application. Attempting to relocate abroad with a child without the consent of the other parent or the court constitutes a violation of the Child Abduction Act 1984, unless you hold a Child Arrangement Order (formerly known as a Residence Order), which permits taking the child away for up to 28 days without written permission.
- Preparation and Discussions: Before filing an LTR application, it’s crucial to discuss the matter with the other parent and involve the child in the conversation. All parties should be fully informed about the plans, available options, and potential consequences of the decisions made.
- Building Your Case: The parent seeking relocation must present a comprehensive plan covering finances, living arrangements, the child’s well-being, and arrangements for regular contact with the other parent. Filing an LTR requires demonstrating that moving abroad is in the child’s best interests both in the short and long term.
- Court Considerations: The court is unlikely to grant permission if the relocating parent is ill-prepared or if the application appears to be motivated solely by a desire to restrict contact between the child and the other parent.
- Legal Guidance for LTR Applications: Seeking expert legal advice is essential when pursuing a Leave to Remove application. Family solicitors, such as DLS Solicitors, specialise in advising on all aspects of LTR applications and can assist in preparing a robust case for the court, aiming to achieve the best outcome for the child and all parties involved.
We offer fixed-fee consultations, so feel free to contact us to schedule a consultation at your convenience.
Responding to a Leave to Remove application
In the past, it was challenging to successfully oppose a Leave to Remove (LTR) application. However, nowadays, these applications can be contested with sufficient justification, which the non-relocating parent must demonstrate to the courts.
To challenge an LTR application, you need to articulate why the proposed move is not in the best interests of the child. This requires a thorough understanding of the relocation plan and solid reasoning as to why the move would negatively impact the child’s welfare, your relationship with the child, or may be impractical due to financial or educational considerations, for example.
Consideration of a Child’s Welfare:
Relocating a child from their home to another country represents a significant life change, and the court prioritises the child’s welfare above all else. Will the relocation enhance or hinder the child’s well-being?
For the non-relocating parent, demonstrating and communicating that the move would adversely affect the child’s welfare may dissuade the court from granting permission for the application.
Mediation:
Before resorting to court proceedings, engaging in mediation discussions with the other parent is advisable. Mediation provides an opportunity to gain insights into the relocation plan and express concerns openly to the relocating parent.
Mediation can facilitate a fair agreement without the need for court intervention, potentially leading to a peaceful resolution that benefits all parties involved
Obtain Legal Advice
Seeking legal advice is crucial when preparing to challenge a leave-to-remove application in court. Expert guidance ensures that you are well-prepared to defend your position effectively. At DLS Solicitors, our experienced family solicitors can provide comprehensive advice on all aspects of challenging a Leave to Remove application, helping you build a robust case focused on safeguarding your child’s well-being.
Contact us to schedule a fixed-fee consultation with one of our advisors, who can assist you in navigating this challenging process.
Once an application has been granted,
If a Leave to Remove application is granted and the parent remaining within the jurisdiction wishes to file another application—such as for increased visitation or contact with the children—typically, this application must be made to the court of the relocated parent and the children’s new jurisdiction.
However, post-Brexit, if the new residency is within an EU member state, the process becomes more complex. The automatic support and enforcement of orders issued by English courts in EU member states may no longer be straightforward. Each EU member state may have distinct procedures for recognising and enforcing such orders, potentially requiring additional legal steps. If the country in question is not an EU member state, the applicable rules could vary significantly based on that country’s individual laws.
It is crucial for parents to seek legal advice specific to the country involved to understand the implications of post-Brexit changes and navigate the complexities of international family law effectively.
Additionally, due to Brexit, the previous “first past the post” rule for determining jurisdiction in European cases no longer applies. Instead, jurisdiction in cases involving EU countries is determined based on specific criteria focusing on the child’s habitual residence and ongoing relationship with both parents, regardless of their locations. Moreover, any orders issued by English courts may not automatically be recognised and enforced in EU member states, necessitating additional legal procedures to ensure recognition in the respective EU country.
At DLS Solicitors, our expert legal team possesses extensive experience across all fields and aspects of family law. From leave-to-remove applications to matrimonial cases, we provide a thorough, sensitive, and professional service from start to finish. We handle your case with the sensitivity it deserves while maintaining a realistic approach regarding potential outcomes. To learn more about our family law services, contact us today via phone, email, or the contact form on our website, and we will be happy to assist you.
We have handled numerous challenging cases in this area and have even set legal precedents. For instance, our firm represented the first reported case where the applicant parent was granted leave based on providing a substantive financial bond (surety) to ensure compliance with the terms of the order.
