FREE CHAPTER from ‘A Practical Guide to Internal and External Child Relocation’ by Jonathan Whettingsteel

CHAPTER TWO

PERMISSION – DO YOU NEED IT?
AND IF SO, WHO FROM?


If a parent is looking to relocate the first question they will often want to know is ‘whose permission do I need?’ Likewise the other parent will often ask, ‘does my partner / ex-partner need my permission to move with our children?’

Although the legislation below refers to ‘leave’ of the court the Family Procedure Rules 2010 changed the terminology. So ‘leave of the court’ is now ‘permission of the court’ when seeking a court order granting relocation.

Where there is No Court Order Governing Child Arrangements

If there is no Section 8 order in place then a parent or party who is the primary carer for a child can move within the jurisdiction without the consent of the other parent. However, they should be aware that the other parent could make an application (including on an urgent basis) for a Prohibited Steps Order to prevent the move.

There is nothing in the Children Act 1989 to expressly prevent a parent removing a child from the Jurisdiction, however in practice if a parent removes a child without the consent of everyone who holds Parental Responsibility, this would be considered child abduction. Section 1 of the Child Abduction Act 1984 makes it an offence to take or send a child out of UK without ‘the appropriate consent.’ The ‘appropriate consent’ is defined in Section 1(3) of this statute;

Section 1(3) Child Abduction Act 1984

In this section ‘the appropriate consent’, in relation to a child, means –

  1. The consent of each of the following –

  1. The child’s Mother;

  2. The child’s Father, if he has parental responsibility for him;

  3. Any guardian of the child;

iiia. Any special guardian of the child;

  1. Any person named in a child arrangements order as a person with whom the child is to live;

  2. Any person who has custody of the child; or

  1. The leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989; or

  2. If any person has custody of the child, the leave of the court which awarded custody to him.

Removing a child without consent could therefore constitute the criminal offence of child abduction which carries a penalty of up to seven years’ imprisonment.

The 1980 Hague Convention on Civil Aspects of International Child Abduction provides remedies for the return of a child who has been unlawfully removed or retained from the Jurisdiction to a Hague Convention country. This provides the mechanisms for the return of a child and cooperation between member states.

Therefore, in the absence of any court order, anyone who holds parental responsibility will need to be consulted before a child is removed from the jurisdiction. This could include the Local Authority where a Care Order has been granted as this would grant that Local Authority parental responsibility for the child or children named.

For internal relocation cases the need for permission is still there, but it would depend upon how far a parent is relocation and the change this would have for the child. Section 3(1) Children Act 1989 defines parental responsibility as;

Section 3(1) Children Act 1989

all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

This would include which school a child attends. Therefore if a parent is looking at relocating internally and this would involve changing a child’s school, then the consent of everyone holding parental responsibility would be required.

There is no set distance or exact precedent on when permission for an internal relocation is required, with this being based on each individual case, but it is sensible to seek the consent of everyone holding parental responsibility before moving as failure to do so could result in a court application and subsequent order with a parent being forced to return a child. This is addressed in more detail below.

Where there is no Child Arrangements Order in force any application for permission to relocate should be issued under Section 8 of the Children Act 1989, being a Specific Issue Order.

Where a Child Arrangements Order is in place

For an internal relocation, provided the move would not breach the terms of any existing order a parent or party who is the primary carer for a child can still move within the jurisdiction without the other parent’s consent. Again though, there is a risk of that parent seeking a Prohibited Steps Order to prevent the move.

Where there is a Child Arrangements Order in force stating with whom a child shall live, any application for permission to externally relocate should be issued under Section 13 of the Children Act 1989, seeking a variation of the existing Child Arrangements Order and permission for a general or specific purpose.

Section 13(1) Children Act 1989 prohibits a child being removed from the Jurisdiction without the written consent order of everyone who holds Parental Responsibility or an order of the court. However this applies only where a Child Arrangements Order has been made for a child to ‘live with’ a party. Subsection 13(2) also permits the removal for a period of up to a month by a party where a Child Arrangements ‘Live With’ Order has been made in their favour.

There is no limit on the number of temporary removals for less than a month and if the other party wants to set a limit this would require an order of the court and a condition being attached to any order.

Section 13 does not apply for internal relocations and any applications for internal relocation will be under Section 8 Children Act 1989, irrespective of whether a Child Arrangements Order is in force.

Section 13(2) Children Act 1989

Change of child’s name or removal from jurisdiction.

(1) Where a child arrangements order to which subsection (4) applies is in force with respect to a child, no person may—

(a) cause the child to be known by a new surname; or

(b) remove him from the United Kingdom;

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(2) Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month, by a person named in the child arrangements order as a person with whom the child is to live.

(3) In making a child arrangements order to which subsection (4) applies, the court may grant the leave required by subsection (1)(b), either generally or for specified purposes.

(4) This subsection applies to a child arrangements order if the arrangements regulated by the order consist of, or include, arrangements which relate to either or both of the following—

(a) with whom the child concerned is to live, and

(b) when the child is to live with any person.

The removal of a child without consent and the requirement for consent is contained in Section 1(4) Child Abduction Act 1984 which states that an offence of child abduction is not committed where;

Section 1(4) Child Abduction Act 1989

A person does not commit an offence under this section by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if; –

  1. He is the person named in a child arrangements order as a person with whom the child is to live and he takes or sends the child out of the United Kingdom for a period of less than one month; or

  2. He is a special guardian of the child and he takes or sends the child out of the United Kingdom for a period of less than three months

If a special guardianship order is in force then the period a child can be removed without consent is extended to three months.

Under Section 33 of the Children Act a Local Authority who has a care order in their favour can also remove a child from the jurisdiction for a period of up to one month without consent.

It is important to ensure that the removal of a child would not breach any court orders in place. For example, if the removal would mean a child does not have the court ordered contact then this would require the consent of the other party due to have contact or variation of the court order otherwise this would constitute a breach of a Child Arrangements Order. This is something that is often overlooked by a parent who has a child arrangements ‘live with’ order. The requirement to provide the child for contact would override the right to be able to remove the child for up to one month.

If removing a child in excess of these periods then it is necessary to seek the appropriate consent as set out above.

It should also be noted that Section 1(5) Child Abduction Act 1989 states an offence is not committed where;

  1. The removing party believes;

    1. The other person consented; or

    2. Would consent if they were aware of all of the relevant circumstances; or

  2. Has taken all reasonable steps to communicate with the other person but has been unable to do so; or

  3. The other person has unreasonably refused to consent.

The refusal to consent cannot be overridden without a court order if the person refusing to consent is named in a Child Arrangements Order as a person with whom the child lives, is a Special Guardian, has custody of the child, or the removal of the child would be a breach of a court order. A practical example of this would be if the removal of the child would mean the child was not provided for court ordered contact (Section 5A Child Abduction Act 1989).

How to prove consent

As noted above, Section 13(1) prohibits the removal of a child without the written consent of everyone who holds parental responsibility. There is no definition as to what format the written consent needs to take.

Where there is no Child Arrangements ‘Live With’ Order in force, there is no legal requirement for consent to be provided in writing. However, it is sensible and much safer to do so. This prevents any dispute arising in future as to whether or not consent has been given.

For internal relocation there is no express requirement that consent needs to be in writing. However, again it would be sensible and good practice to do so.

There is no definitive statutory guidance as to how a parent would provide consent and what this ‘consent’ should look like with much of the guidance coming from case law.

The meaning of consent and the form that it should take was considered by Ward LJ in the case of Re P-J (Children) (removal outside jurisdiction: abduction) [2009] All ER (D) 242 (Jun). He noted at paragraph 44 of his Judgement that there is ‘surprisingly little authority on what constitutes sufficient consent.’ Reference was made to Hale J, as she was at the time considering this issue in the case of Re K (Abduction: Consent) [1997] 2 FLR 212. She had to weigh up the two conflicting views of Holman JJ and Wall J in the case of Re: W (Abduction: Procedure) [1995] 1 FLR 878. Holman J stated consent did not need to be evidenced in writing;

. . . parents do not necessarily expect to reduce their agreements and understandings about their children into writing, even at a time of marital breakdown. What matters is that consent is ‘established’. The means of proof will vary.”

Holman JJ did not agree with this, stating;

It follows, in my judgment, that where a parent seeks to argue the Article 13(a) ‘consent’ defence under the Hague Convention, the evidence for establishing consent needs to be clear and compelling. In normal circumstances, such consent will need to be in writing or at the very least evidenced by documentary evidence. Moreover, unlike acquiescence, I find it difficult to conceive of circumstances in which consent could be passive: there must in my judgment be clear and compelling evidence of a positive consent to the removal of the child from the jurisdiction of his habitual residence.”

Hale J gave wording which now appears to be accepted that consent must be ‘unequivocal’. Giving judgement in the above case of Re: K she stated;

It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.”

The comments of Ward LJ were considered by Poole J in Re P and another (children) (Hague Convention: consent) [2021] EWHC 2184 (Fam).

In paragraph 39 of the Judgement Poole J endorsed the comments in Re P-J of Ward LJ;

As Ward LJ noted, for consent to be valid it must be unequivocal and informed, and it must have been given prior to the removal. Consent obtained by fraud will not be considered valid.”

Re P-J also considered how much in advance of removal consent must be given. It was confirmed consent does not need to be instantaneously at the time, and consent can be given that removal will take place in the future, or even at ‘an indefinite date’ (judgement paragraph 46).

Paragraph 48 of the Judgement of Ward LJ provides helpful guidance on the issue of consent;

(1) Consent to the removal of the child must be clear and unequivocal.

(2) Consent can be given to the removal at some future but unspecified time or upon the happening of some future event.

(3) Such advance consent must, however, still be operative and in force at the time of the actual removal.

Re: D (a child: Habitual Residence: Consent and Acquiescence) [2015] All ER (D) 158 (Jun) [2015] EWHC 1562 (Fam) confirmed the above comments of Ward LJ

These comments were also referenced and confirmed in some of the most recent cases to look at consent.

In A v B [2021] All ER (D) 03 (Jul) [2021] EWHC 1716 (Fam) consideration was given on consent. The parents had agreed an order by consent not to remove the child from the jurisdiction. There was no end date to this period. This case also provides helpful guidance on port alerts to prevent a removal. This confirmed for a port alert to be made there needed to be a ‘real and imminent’ risk of removal. This confirmed a port alert should also only last for 28 days in the first instance, and that any application should be made to the family court, not the High Court.

The case of Re: P and another (children) (Hague Convention: Consent) [2021] EWHC 2184 (Fam) [2021] All ER (D) 20 (Aug). This case concerned a Father’s application under the Hague Convention (more on that in Chapter 6) for the return of his two children who were removed from the United States to the UK by their Mother. The Father’s case was that his consent had been obtained by the Mother using dishonest means.

There were two children from a marriage, aged 11 and 12 at the time of the Judgement. The parties resided in America and the Mother was offered a temporary three year employment contract in England as an IT manager. The Father initially opposed the move and there were a number of email exchanges between the parents in July 2020. It was accepted that the Father did agree to the Mother and children moving to England after a number of emails, and in late July the parties attended before a notary and signed a written agreement stating;

[The Father] consents to both minors [the children] residing and travelling abroad with their Mother….. for employment and / or leisure purposes. As such [the Mother] will assume primary physical custody on 01 august 2020 of both minor children.”

The parents also signed a separation and custody agreement confirming joint legal custody of the children, and that the children would live primarily with the Mother.

The Father then started making attempts to sell the family home in America. He visited the children in the UK in November 2020 until January 2021.

In March 2021 the Father made an application to the High Court for a without notice location order (despite at that time being in England and in the same town as to where the Mother and children were living).

The Mother’s contract of employment was with the US Government, and as such when being stationed abroad she was entitled to a package of benefits. It was the Father’s position that his consent to the removal of the children was given on the basis the Mother would have him listed as a dependent upon her orders by January 2021. This would allow him to also benefit from the Mother’s employment package and move to England to join the Mother and children. The Mother sent an email after the move to England saying that as the couple had separated her employer would not include the Father as a dependent. The Father’s case was that he had been tricked in to giving his consent.

There were a number of points for the court to wrestle with, including determining whether the Hague Convention applied, the habitual residence of the children, whether the Mother had unlawfully retained the children and whether the children were at risk if the court ordered their return. This is a useful case to refer to for a commentary on the current position on return cases.

In determining whether consent had been given Mr. Justice Poole had to consider whether the Father’s consent was “unequivocal and informed or was it obtained by duplicitous means or misinformation and therefore vitiated?” (paragraph 4 of the Judgement). If addressing the court on consent “unequivocal and informed” are the key words.

The burden of proof for determining whether consent has been given rests on the person relying on it. So in short it, was for the Mother to prove the Father had consent, not for him to prove that he hadn’t. However when it came to showing the children had been unlawfully retained, the burden of proof fell on the Father.

Upon analysing the documents the Judge was satisfied there was nothing recorded to state the Father’s consent was conditional upon being named as a dependent by January 2021. Likewise, the Judge stated that there was nothing in the written exchanges between the parents where the Father alleged trickery or dishonesty by the Mother.

In paragraph 54 of the Judgement it was stated:

When considering all the evidence in this case I remind myself that emails and written messaging have to be considered in the context of a marriage breakdown, heightened feelings, changing information, and many oral conversations that are not recorded. It would be wrong to approach the communications between the parties as if analysing the terms of a commercial contract. This is a family case. I have regard to the whole of the evidence and the circumstances of the time. Some statements are made in the heat of the moment, when in a rush or when tempers are raised, others are more considered. Not all emails or messages should be given equal weight. Nor should the court approach the statements and agreements as though this were a contract law case.”

This may be a useful point to raise if disputing that the agreement between the parties is more than what has been recorded in writing or that something was said in the heat of the moment.

The key points to take from this Judgement are that the court gave weighting to written communications between the parties, as well as the separation agreement and travel consent form. If you are looking at evidencing consent, although formal documents are not essential, they would certainly be sensible and would carry weighting with the court, and if conditions are given on consent these should be confirmed in writing and prior to removal.

Removal without consent

If a child is removed from the jurisdiction without consent, this would constitute a child abduction. The law and process around this is too much to do justice to in this section and is a separate book in itself.

If a child has been removed and relocated within the jurisdiction without the appropriate consent then the remedy is for the parent to issue an urgent application to the court for a Section 8 Children Act Order. A Specific Issue Order is a must, seeking the return of the children, along with a Prohibited Steps Order Preventing the further removal. It is however also worth considering what measures are required to prevent a further removal. This could include the surrender of a child and / or Parent’s passport to the court or solicitors under a Specific Issue Order, a Prohibited Steps Order to prevent the children being removed from a parent’s care if the removal followed an unlawful retention and a Child Arrangements Order. The remedies required will depend on the circumstances and risks in each case.

Likewise, if a parent believes there is a genuine risk of a child being removed from the jurisdiction, or relocated within the jurisdiction without their consent then they should apply for a Prohibited Steps Order. Prevention of removal is often the best remedy rather than seeking a return following removal.

If a child has been removed or retained outside of the Jurisdiction then an application can be made under the 1980 Hague Convention. Article 3 outlines what is considered an unlawful removal and retention and Article 8 the provisions for the return of the children. If consent is being argued by the removing parent this would be considered under Article 13 of the convention.

There is little case law on consent for internal relocation cases, however good practice would be to apply similar procedures to external relocation cases and indeed the guidance from the case of Re: C (A child) (Internal relocation) [2015] EWCA 1305 suggests that there was no distinction between internal and external relocation cases.

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