Taking a child out of the country with the approval of the court
Taking a child out of the country with the approval of the court is essential as a recent case has demonstrated that the court will consider the case not only against the welfare needs of the child but also the law regards contempt if you seek approval from the court after the event. Cheshire family law specialist solicitors Stonehewer Moss have noted the veiled threat of a Hadkinson order being made in this scenario. Accredited solicitor Michael Brennan remarks, “This is a first instance case that is of interest because of the current law and how our departure from EU law leaves a potential hole in the case law. Hadkinson orders are simply orders that a party in contempt of court shall not be heard. In this case the court has made an order based on the childs` welfare needs but the implication of displeasure at the flouting of the law by a parent is clear. This blog sets out our understanding of the current state of the law on this issue, which has changed much in interpretation over recent years from a reading of the leading authority called Payne. The lesson to take from the recent case is to seek legal advice on the issue and make a court application; if you cannot pay a solicitor for advice how are you funding the proposed move adequately? The professional preparation of a case to seek permission will go towards persuading the court you have thought it through. If you are the remaining parent, you need to seek an undertaking from a solicitor to hold the other parents passport until agreement is reached or seek a prohibited steps order at Court. The police also have an emergency port alert system activated by reporting to an Inspector at your local police station but I have experienced resistance to use of this extreme and probably costly step and a court order may be your better option. Consideration should always be given to pre court negotiation, including mediation.”
The current state of the law when considering an application for permission to remove is as follows:-
By section 13 Children Act 1989 a parent with a child arrangement order specifying that the child lives with her must obtain the consent of any other parson with parental responsibility to remove the child from England & Wales. Not to do so may be the crime of child abduction. In the absence of such an order the other person must apply to prevent the removal by a prohibited steps order at Court. If consent is refused, the parent must seek leave to remove from the Court.
Assuming leave is required, the Court will assess the application upon the following principles:-
1. The Court will seek to do what is best for the welfare of the child;
- The following guidance of the Court of Appeal in a case called Payne will be considered:-a) There is no presumption that the parent with the arrangements order should be granted the application to take out of the jurisdiction; b) The motives will be weighed as to whether they are appropriate and not simply intended to deny the other person a relationship with the child;
c) The proposals to remove should be considered to check they are realistic, reasonable and thought through in the best interests of the child;
d) The effect on the applicant and her family of the refusal of leave is important;
e)The effect on the child and sometimes the other parent of lack of contact if granted is very important;
f) The opportunity for continuing contact may be very significant. The applicant should put forward proposals for contact by indirect means and skype, for example.
The wishes of the child may be explored by obtaining a report from Cafcass.
If the country is not covered by the Hague convention, which provides a procedure for return of children, a close consideration of the proposals can be expected. The Court will be concerned to ensure the safety of the child.
For advice negotiation and representation of a child arrangements issue please call 01606 872200 or e mail firstname.lastname@example.org visit www.stonehewermoss.co.uk
Tags: child arrangements