Transnational Parenting And The Consequences

Author:Ms Emily Kozien-Colyer
Profession:Goodman Derrick LLP

Under English law no one is permitted to take a child out of the jurisdiction of England and Wales (which, for the moment at least, includes Scotland) without the permission of all those with parental responsibility, because doing so would be child abduction.  Where this permission is not forthcoming the party intending to relocate will need to apply to the court for permission.

In the recent case of S v G the judge commented that "...parties that go into transnational parenting agreements go in with their eyes wide open, fully alert to the consequences of it going wrong." In reality, however, it is extremely hard to be mindful of, let alone prepare for, the consequences associated with the breakdown of a relationship, without even factoring in the potential that an ex-spouse or partner might decide to emigrate or move back to his or her home country with the children.

Nevertheless, while cases brought before the court are fraught with difficulty for the people involved, the legal position, which has been clarified in recent years, is described as "clear and stable".

Leave to remove – the legal position

In considering an application for leave to remove (or 'relocation cases') the overriding principle which the court must apply is that the welfare of the child is paramount and overbears all other considerations. In determining the child's welfare the court follows a checklist which is set out in section 1(3) of the Children Act 1989.

The court must not categorise cases according to the concepts of primary or shared care, and there is no legal principle favouring an application made by the primary carer. Each case may be decided on a fact by fact basis, in accordance with the above principles and with assistance from the following guidance given by the Court of Appeal:

Is the application genuine, in the sense that it is not motivated by some selfish desire to exclude the other parent from the child's life? Is the other parent's refusal motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? Is the application realistically founded on practical, well-researched and investigated proposals? What would the impact of refusal be on the applicant? What would the...

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