If a parent decides that they want to move with their child away – either moving some distance in this country or moving abroad, then retrospective leave is something which the other parent should know about. Ideally there should be discussion and information exchanged and only if agreement cannot be reached, an application made to the Court. We review a recent case where permission for retrospective leave to remove a child from the UK was granted.
Any parent planning and wanting to go abroad with their child should provide full details of what their plans entail and be able to demonstrate that they have a thought out, detailed proposal which can be discussed.
Whilst ideally any application to relocate a child should be made to the Court only after detailed plans have been put to the other parent with plenty of time to discuss them and it had proved not possible to reach an agreement, in the real world, many applications to relocate are made late and urgently.
It is still the case that the Court would expect any application to relocate in advance of the relocation.
A recent case however, has occurred where the High Court has exercised its jurisdiction to give a mother retrospective permission for temporary leave to remove the child to Spain until the ending of proceedings. In this recent case (Re X, Y and Z (children)) (retrospective leave to remove from the jurisdiction) [2016] the parties’ marriage broke down in March 2013 and the mother took the children to Spain. The mother took the children to Spain without the father knowing about it, and certainly without him agreeing to it. The father still didn’t know that the children had gone to Spain in May 2013 when he made an application to the Court for a Prohibited Steps Order preventing the children’s removal from this country. Obviously by this time the children had already left. The Court and the father were not aware that the children were in Spain at the time, and the Court ordered the surrender of the children’s passports and prohibited the mother from removing the children from England and Wales.
Following it being learnt that the children were abroad, the father made an application in Spain in February 2014. In April 2014 the Spanish Court ordered the children’s return to England. The mother unsuccessfully tried to appeal this decision in Spain. There were unsuccessful attempts made to try and enforce the order for the children to return to England by the Spanish Court.
In June 2016 the mother applied to the English Court for permission to relocate the children to Spain (where she had been since March 2013) and within that application asked for retrospective permission for temporary leave to remove the children (from England) until the proceedings had ended.
It must have been part of the case that the fact that the children had lived in Spain for 3 years assisted the Court when it was decided that it would not be in the children’s best interests for them to come back to England at this time. The decision made therefore was that the children could remain in Spain until the end of the proceedings. The proceedings would now therefore be looking at where the children should live longer term, although one has to speculate that given the children had lived in Spain already for 3 years and now would be living in Spain until these proceedings ended, that the onus must now be on the father in real terms to demonstrate that the change involved in the children returning back to England and the disruption that would unavoidably cause, could be justified as being in their best interests.
Our family law team advises families across the South West on the best solutions for them. If you would like to get in touch with the team about divorce or any other issue you can telephone0345 450 5558 or email enquiries@stephens-scown.co.uk