The Ultimate Guide to Leave to Remove Orders

When families break down, what happens with the child(ren) is often a major concern. That’s particularly true if you want to relocate with the child, but your former partner is opposed, and vice versa. In these cases, the parent who wishes to move may seek a Leave to Remove Order. 

A Leave to Remove Order is a court decision that grants one parent permission to relocate with their child. It balances the relocating parent’s desire for a new opportunity with the other parent’s rights and, most importantly, the child’s welfare. However, navigating the legal, emotional, and practical aspects of these cases can feel overwhelming.

This guide aims to provide a comprehensive understanding of Leave to Remove Orders. Whether you’re considering applying for an order, opposing a relocation, or simply exploring your options, this resource is designed to answer your questions and outline the steps involved. We’ll cover:

• What a Leave to Remove Order is
• The legal framework that applies to Leave to Remove Orders
• Alternatives to Leave to Remove Orders
• All your frequently asked questions

With the right preparation and guidance, parents can approach these situations with confidence, ensuring that their child’s well-being remains at the heart of every decision.

What is a Leave to Remove Order?

A Leave to Remove Order is a legal process within family law that provides one parent with permission to relocate with a child to another jurisdiction, typically outside the UK. This permission is required when both parents share parental responsibility for the child, and one parent objects to the proposed relocation. The concept of “leave” in this context simply means seeking permission, which is either agreed between the parents or granted by the court when agreement cannot be reached.

When is Leave to Remove Needed?

In some cases, parents may come to an agreement about relocation without the need for court involvement. For example, if a parent is offered a job in Paris, the parents might negotiate arrangements for how the child will split their time between the two countries, potentially through discussions between them directly and agreeing a parenting plan or a memorandum of understanding through working with a mediator. Such agreements might include provisions for the child to spend time in Paris with one parent while maintaining regular contact with the other parent in England.

However, when agreement is not possible, the parent wishing to relocate must seek permission from the court. For instance, if one parent argues that the relocation would disrupt the child’s living arrangements or education, the disagreement necessitates legal intervention. A Leave to Remove Order becomes the mechanism through which the court decides whether the relocation is in the child’s best interests.

The Legal Framework

Applications for Leave to Remove are governed by the Children Act 1989. This legislation, which replaced older terms like “custody” and “residence” with “child arrangements orders,” focuses on determining where the child will live and how they will spend time with each parent. Within this framework, Leave to Remove Orders are an extension of these living arrangements, addressing the specific scenario of relocating to another country.

The core consideration for the court is the child’s welfare and what would be best for the child. This includes evaluating the proposed living arrangements in the new location, how the child will maintain relationships with both parents, and whether the relocation aligns with their best interests. The decision must also account for practical issues, such as the feasibility of schooling and the impact on shared parenting arrangements.

Addressing Parental Disputes

In cases where one parent objects to the relocation, the court must weigh the competing arguments. For example, a parent might argue that a move to Paris would provide the child with new opportunities, such as learning a second language and experiencing a different culture. Conversely, the other parent might argue that relocating would disrupt the child’s education or make shared parenting arrangements unworkable.

If a parent relocates with a child without permission, the other parent can take legal action to prevent or reverse the move. This might include applying for a Prohibited Steps Order, which can prevent a parent from removing the child from the country without consent or a court order. In urgent cases, measures such as port alerts at airports or ferry terminals may also be implemented to prevent unauthorised relocation.

A Closer Look at the Legal Framework Governing Leave to Remove Orders

Leave to Remove Orders in England and Wales are governed by the Children Act 1989, which places the welfare of the child as the paramount consideration. While historical case law has provided guidance on how courts approach these applications, more recent rulings have clarified the importance of adopting a holistic, welfare-focused analysis rather than rigidly following older precedents. This section explores the legal framework and the key factors courts take into account when deciding Leave to Remove applications.

The Welfare Principle as Paramount

The Children Act 1989 establishes that all decisions about children must be guided by the welfare principle. This ensures that the child’s needs take precedence over the preferences of either parent. When considering applications for Leave to Remove, the court assesses whether the proposed relocation aligns with the child’s emotional, educational, and social needs, as well as their overall stability and development.

The Welfare Checklist

The welfare checklist under Section 1 of the Children Act 1989 provides a structured framework for courts to evaluate what is in the child’s best interests. Key factors include:

• The wishes and feelings of the child (in light of their age and understanding).
• The child’s physical, emotional, and educational needs.
• The likely effect on the child of any change in circumstances.
• The child’s age, sex, background, and any relevant characteristics.
• Any harm the child has suffered or is at risk of suffering.
• The capability of each parent (or other relevant individuals) to meet the child’s needs.
• The range of powers available to the court under the Act.

Human Rights and Proportionality

Leave to Remove applications often also involve considerations of human rights, particularly the right to family life under Article 8 of the European Convention on Human Rights. This requires the court to balance the child’s rights with those of both parents. Courts aim to ensure that relocation does not unnecessarily disrupt the child’s relationship with the non-relocating parent, while also considering the child’s right to a stable and supportive environment.

A Modern Approach to Leave to Remove Applications

Historically, the 2001 case of Payne v Payne was the leading authority on Leave to Remove cases where a mother was granted permission to permanently remove her child to live in New Zealand  In this case, Dame Butler-Sloss reviewed the then case law and provided a list of considerations which has been relied upon since including the fact that the Welfare of the child is always paramount, the reasonable proposals of the parent with a live with order carry great weight, the effect upon the applicant parent and the new family of the child of a refusal of leave is important and the effect of the child of the denial of contact with the other parent provided structured guidance for relocation cases, including factors such as the genuineness of the application, its impact on the parents, and the practicalities of relocation. However, over time, reliance on these principles caused confusion, as some cases prioritised the applicant’s circumstances over the holistic welfare of the child.

The courts have since clarified that the only principle to guide decisions is the paramount welfare of the child. While elements of previous frameworks may still be useful in evaluating individual cases, they are considered advisory rather than binding. Modern decisions adopt a flexible, comparative approach, weighing all available options to determine what arrangement best meets the child’s needs in the context of their unique circumstances.

Other Routes to Consider Before Applying for a Leave to Remove Order

Applying for a Leave to Remove Order is often viewed as a last resort, pursued only when all other avenues for resolving disputes have been exhausted. The court process can be lengthy, stressful, and expensive, so it is generally recommended to explore alternative methods of resolving disagreements about relocation first. This section outlines other routes you should consider before taking your case to court.

Mediation: The Preferred Alternative

Mediation is often the first step in resolving disputes related to relocation. A trained mediator, preferably one with legal expertise in family law, can help parents explore workable solutions that serve the best interests of the child. Mediation sessions allow both parties to express their concerns and priorities in a neutral setting. For instance:

• Parents might discuss practical compromises, such as adjusting existing arrangements to better suit the relocating parent’s needs, without requiring the child to move abroad.
• Relocation-related arrangements can also be considered, such as agreeing to longer holiday visits with the non-relocating parent or establishing clear schedules for communication and visits.

Mediation aims to achieve solutions that both parents can accept, even if they are not ideal. Reaching an agreement through mediation often saves the emotional and financial strain of a court battle.

Arbitration: A Private and Speedy Resolution

If mediation fails, arbitration can be another option. In arbitration, both parties appoint a neutral arbitrator—essentially a private judge—who listens to the evidence and makes a binding decision. This process is typically faster than going to court and allows for greater flexibility in how the case is handled.

Arbitration is particularly useful when parents want a formal decision but wish to avoid the public scrutiny or delays often associated with the court system. It also allows for tailored procedures, such as limiting the scope of evidence presented or focusing only on specific issues related to relocation.

Collaborative Law: A Joint Problem-Solving Approach

Collaborative law is another method that can be used to resolve disputes without court intervention. In this process, both parents work with collaboratively trained lawyers to negotiate an agreement. The focus is on open communication and problem-solving in a series of structured meetings.

However, collaborative law requires both parties to commit to resolving the dispute without resorting to litigation. If the process breaks down and one party decides to go to court, new legal representation must be sought, which can increase costs and delay resolution.

Why Avoiding Court is Often the Best Option

Court intervention should generally be avoided unless absolutely necessary. The adversarial nature of court proceedings can strain relationships further and may result in decisions that neither parent fully supports. Additionally, once a case reaches court, the outcome becomes uncertain, as the judge will focus solely on what they deem to be in the best interests of the child, which may not align with either parent’s preferences.

By pursuing mediation, arbitration, or other forms of ADR, parents retain more control over the outcome and can work towards creative solutions that accommodate the needs of everyone involved.

You Ask, Blanchard Answers

Q: Do I always need a Leave to Remove Order to move with my child?

A: Not necessarily. If both parents agree to the relocation and document their agreement, a court order is not required. However, if there is disagreement, a Leave to Remove Order is essential to ensure the move is legally sanctioned.

Q: What happens if I relocate without permission?

A: Relocating without the other parent’s agreement or a court order can lead to serious legal consequences, including accusations of child abduction. The court can issue orders to return the child, and the non-consenting parent can seek legal recourse under international conventions if the relocation crosses borders.

Q: What evidence strengthens my Leave to Remove application?

A: A well-prepared application includes detailed plans for housing, schooling, and financial stability in the new location, as well as proposals for maintaining the child’s relationship with the other parent. Clear, practical arrangements that prioritise the child’s welfare can increase the likelihood of approval.

Q: What if my child objects to the move?

A: The court takes the child’s views into account, especially if they are mature enough to express informed opinions. However, the child’s preferences are considered alongside other factors (such as their emotional and educational needs) which, in many cases, may outweigh them.

Q: What is the role of CAFCASS in Leave to Remove cases?

A: CAFCASS officers (Children and Family Court Advisory and Support Service) may be appointed to assess the case, speak with both parents and the child, and provide the court with recommendations based on the child’s welfare.

Q: How long does the Leave to Remove process take?

A: The process length varies depending on case complexity, court availability, and the need for additional assessments or reports. Alternative dispute resolution methods can expedite agreements and avoid lengthy court proceedings.

Q: What if the relocating parent is from another country and wants to move back?

A: Courts take this into account, especially if the relocating parent can demonstrate strong ties to their home country and benefits for the child, such as exposure to a new culture or better opportunities. However, this alone does not guarantee success; the child’s welfare remains the deciding factor.

Q: Can I relocate without a court order if my ex-partner isn’t involved in our child’s life?

A: If the other parent has parental responsibility, you still need either their consent or a court order to relocate, even if they are not actively involved. Failing to secure legal permission could result in serious legal repercussions.

Final Thoughts

It’s always hard when a family breaks apart, and harder still when children are involved. But whatever challenges present themselves, a calm head and solid legal advice are always helpful.

In the case of Leave to Remove Orders, there is one final piece of advice we would like to impart: research, research, research. Whichever side you are on—the side that wants to relocate, or the side that wants to stop a relocation—you will have to present the strongest and most airtight case possible if you want to give yourself the best chance of a positive outcome. That means having every detail figured out beforehand, and being meticulous with your documentation. 

If you’re in need of legal advice about Leave to Remove Orders (applying for one, or contesting an application for one), please contact Blanchards Law to see if we’d be a good fit for your case.