Guide to Leave to Remove Applications

A Leave to Remove application is where a parent or main carer of a child or children asks for the court’s permission to leave the area of this jurisdiction i.e. England and Wales with the children to live abroad on a permanent basis. In the event that the parents are unable to agree whether the relocation of the children should take place, a Leave to Remove decision will be made by the court.

This guide to Leave to Remove applications will cover proceedings from both perspectives. First, let’s look at the basic principles included with a Leave to Remove application – which will be important to keep well in mind from the beginning.

Leave to Remove – the basics

Before a Leave to Remove application reaches the courts, there are some key points worth considering:

• The court places child welfare above any needs, requests or wishes of the parent
• The motivation of the moving parent will be closely scrutinised. If an application is deemed to be primarily targeted at ending communication between the ‘left behind’ parent and the child, it’s unlikely the application will be successful.
• Whether or not the parent left behind could have regular, fulfilling contact with the child
• The implications for the parent filing the application should they be unsuccessful
• Any mediation or attempt at mediation between parents

Submitting a Leave to Remove application

Gaining consent

If written consent from the other parent cannot be obtained, then a Leave to Remove (LTR) application should be filed. Attempting to relocate abroad with a child without consent of the other parent, or the court, means you will be in violation of the Child Abduction Act 1984.

That is unless you hold a Child Arrangement Order (previously known as a Residence Order), which allows you to take the child away for 28 days without written permission.

Discussions beforehand

When you file an LTR application, you should first discuss the issue with the other parent and the child. Parties should be aware of the plans, available options and all potential consequences of any choices made.

Making your case

The parent wishing to relocate must have a sound plan regarding finances, living arrangements, the well-being of the child in question and the ability for the child to have regular contact with the other parent. Filing an LTR means making a strong case that moving abroad with the child is in that child’s best interests – both short and long term.

The court will be unlikely to grant permission should a parent either be ill prepared to move the child, or if the parent is only filing for the application as a means of cutting contact between the child and the other parent.

Legal advice for Leave to Remove applications

When filing an LTR, expert legal advice is essential. Family solicitors – such as Goodwins – can advise on every aspect of a Leave to Remove application, and help you build a robust application to the courts, aiming to achieve the best possible outcome for your child and all parties involved.

We provide fixed fee consultations, so contact us to arrange one at a time to suit you.

Responding to a Leave to Remove application

Challenging an application

Historically, it was difficult to successfully stop a Leave to Remove Application from being granted. Now, they can be challenged with sufficient reasoning – which the non-moving parent would have to demonstrate to the courts.

If you wish to challenge an LTR application, then you will need to identify why the move does not have the best interests of the child in mind. It requires knowledge of the proposed plan, as well as firm reasoning as to why the move would be either a detriment to the child, the relationship you hold with the child, or is unfeasible for any reason – financial or educational, for instance.

Welfare of your child

Taking a child from their home and relocating them abroad will be a major shift in the child’s life. The courts take this into account more so than any other factor. Will the move be an advantage or disadvantage to the child’s welfare?

For the non-moving parent, if they are able to demonstrate and communicate that the move would be bad for the child’s welfare, the court may not wish to grant permission for the application.

Mediation

Before it reaches the courts, you may try to engage in mediation discussions with the other parent. These discussions can help you to learn more about relocation plan, and allows you to communicate your misgivings openly to the relocating parent.

Mediations can help you come to a fair agreement without resorting to the courts, and may allow for a peaceful resolution which benefits all parties.

Legal advice when challenging for Leave Remove applications

To ensure that you are best prepared to challenge a Leave to Remove application in court, expert legal advice is always necessary. As experienced family solicitors, Goodwins can advice on all facets of a Leave to Remove application, helping you to build a strong case to prevent your child from being taken abroad, with an outcome based on the wellbeing of your child above anything else.

Contact us to arrange a fixed fee consultation with one of our advisors.

Once an application has been granted

If a Leave to Remove application is granted, and the parent who stays in the jurisdiction would like to lodge another application, for example, for increased visitation or contact with the children, generally any application would have to be made to the court of the relocated parent and children’s new jurisdiction.

However, post-Brexit, if the new residency is in an EU member state, the process becomes more complex. The automatic support and enforcement of orders made by the English court in EU member states may no longer be straightforward. Each EU member state may have different procedures for recognising and enforcing such orders, and in some cases, additional legal steps may be required. If the country in question is not an EU member state, then the rules that apply could vary significantly and would be based on the individual laws of that country.

It is essential 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.

Also, due to Brexit, the “first past the post” rule for establishing jurisdiction in European cases no longer applies. Now, jurisdiction in cases involving EU countries is determined based on a set of criteria that focus on the child’s habitual residence and the ongoing relationship with both parents, irrespective of their location. Additionally, any orders made by English courts may not be automatically recognised and enforced in EU member states. This necessitates additional legal procedures to ensure the order’s recognition in the respective EU country.

Here at Goodwins Family Law Solicitors, our expert legal team have vast 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 to you from start to finish. We will treat your case with the sensitivity it deserves, whilst remaining realistic with you in regards to any potential outcome that you are likely to face. To find out more about our family law services, get in touch with us today. Contact us via phone, email or the contact form on our website and we’ll be more than happy to help.

We have dealt with many difficult cases in this area, indeed on occasion, we have made new law. The firm acted on the first reported case where the applicant parent was granted leave on the basis of a surety, that is, a substantive financial bond being provided to ensure compliance with the terms of the order.

For more information on child custody, you can visit our online Advice Centre.