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What is Removal from Jurisdiction?

“Removal from jurisdiction” is a term that relates to matters of child custody. It refers to situations where one of a child’s parents or guardians removes the child from the country in which they live.

Removal from Jurisdiction

The need for a removal from jurisdiction typically arises when a marriage or relationship ends, and one partner wants to leave the country and take one or more children with them. If the other parent objects to the child being taken out of the country—and the parents can’t agree on what is most beneficial for the child, or on where the child should live—the court can make a decision on behalf of the parents.

The removal from jurisdiction is the application made by the parent who wants to leave. The court makes a decision after hearing evidence relating to the case. The “jurisdiction” in these cases refers to the UK as a whole, including England and Wales.

Note that if one parent is acting alone without the knowledge or consent of the other parent, they cannot arrange for their child’s immigration. To arrange for the immigration they must obtain either the consent of the other parent, or the leave of the court.

In addition, if a child arrangements order is in force, neither parent can arrange for their child’s immigration unless they have leave of the court. Alternatively, the parent who wants to take the child out of the country must obtain the written consent of all other people who have parental responsibility of the child.

Parents can act jointly to emigrate to another country, and can themselves arrange for the emigration of their children. This may qualify as a removal of jurisdiction in a case where the child has been involved in the courts system for other reasons; for example, if a child arrangements order is in place that specifies the child lives apart from their parents.

Lawful Versus Unlawful Removal

Removal from jurisdiction can be carried out in a lawful manner when the appropriate permissions are obtained. Unlawful removal applies when a child is removed from the UK without the appropriate consent. It’s against the law for any person to take a child out of the UK, or send a child out of the UK, if they don’t have the appropriate consent. This might mean consent from one or more parents or guardians, or leave from the court. Taking a child abroad without express consent or permission is considered child abduction, and is a criminal offence.

Therefore, in order to lawfully take a child out of the UK, it must be done with the consent of all parents or guardians. If that consent can’t be obtained, an application must be made to the court to reach a decision.

Applying to the Court 

An application for a removal from the jurisdiction is made to the Family Court

When an application is made, it typically takes four to six weeks for the first hearing to be scheduled. Once the application is filed and processed, both parents are notified in writing. The other parent must file an acknowledgement that they have received the notice, and must also state whether they plan to contest the removal.

Because the welfare of the child is the most important matter in the case, the parent or guardian making the application must provide certain details about the child’s life in the new country. These might include where the child will live, and with whom; where they will go to school; and whether or not any friends or family members are living in the area where the child will live. The court will also want to know how the child will maintain their relationship with their other parent, and with that parent’s family, if applicable.

From filing the application to the final hearing, the process of obtaining a removal from jurisdiction can take anywhere between 6 and 12 months.

What Factors are considered in a Removal from the Jurisdiction Request?

Many different factors can be taken into account when the court considers a removal from jurisdiction request. For example, consider a case where two parents are divorced and have a child. The custodial parent wants to leave the UK and return to their home country of Australia, taking the child with them. In such a case, the courts may consider some or all of the following factors when making their decision.

  • What motivates the parent’s desire to remove the child? For example, is the emigrating parent hoping to exclude the other parent from the child’s life?
  • How realistic is the emigration plan, in terms of its effect on the child? Will emigration have a positive effect on the child?
  • Why does the opposing parent oppose the emigration? Is it motivated by concern for the child’s welfare, or is there an ulterior motive in play?
  • Would removal from jurisdiction have a negative effect on the relationship between the child and the parent who is staying behind?
  • How might the child benefit from forming new relationships with the custodial parent’s family in Australia?
  • How would the custodial parent be impacted if the removal request is denied?

While there are often many factors in play when the courts make decisions about removal from jurisdiction requests, the number one most important factor is always the welfare of the child. The most weight is therefore given to factors that involve the child’s welfare.

The judge does this by applying the facts of the case to the Welfare Checklist, which is described in the Children Act 1989. The Welfare Checklist includes factors such as the child’s own wishes and feelings; the effects of the change of circumstances on the child; and how capable each parent or guardian is in meeting the child’s needs.

In some cases, a Children and Family Court Advisory and Support Service (CAFCASS) officer may become involved in the case; this is usually a social worker who is appointed by the judge. When this happens it’s usually because the judge considers it better for the child to talk to a CAFCASS officer rather than to appear in court. The CAFCASS officer talks to the child about what they think and feel about the case, and what they want to happen. The appointed officer will also consider all of the matters in the Welfare Checklist and provide a report containing a recommendation for the court to consider.

Family Court Involvement after a Removal from Jurisdiction

One thing that’s important to note is that after a removal from jurisdiction is completed, and the parent and child have left the country, the English Family Court no longer has any involvement with the case. This is because the children are now considered residents of another country.

If a parent or guardian wants to apply to the court for any matters concerning the child after they leave the UK, they must apply through the court system in the child’s new country of residence.

This applies when the non-custodial parent wants to arrange for contact with the child, and in cases where the custodial parent wants to take the child to another new country. If this latter situation arises, it is governed according to the laws of the country in which the child is currently living.

There is one exception, which applies to child arrangement orders made before the child was taken out of the UK. If the child is taken to another EU country, or to a country that is a signatory to the 1996 Hague Child Protection Convention, the process is somewhat simpler. This is because any arrangements order made by the English Family court is automatically enforced in the new country. This does not apply to arrangements made after the child leaves the UK, and does not apply to any other matters pertaining to the removal from jurisdiction.

What if Your Ex Tries to Take Your Children without Consent?

If you know or suspect that your former spouse or partner wants to take your children out of the country—without your consent or the court’s consent—it’s important to get help quickly. Often the first step to take is to work with a solicitor to apply to the court for a Prohibited Steps Order. Once granted, a Prohibited Steps Order can prevent anyone from taking or sending your children out of the country.

Other actions that can be taken include preventing your former partner from obtaining a new passport, or ordering that your children’s passports be surrendered. A Port Alert Order can also be put in place at ports and airports. This means that if your former partner attempts to remove or send the children out of the country, port and airport officials can act to prevent the removal.

Removal from the Jurisdiction is a complex matter and it is important that specialist legal advice is taken.

Contact Mrs Sadhana Joshi of Avenue Solicitors, who is a Family Law specialist to obtain legal advice. Email  sjoshi@avenuesolicitors.com Telephone numbers 0203 540 7665 or 07539 177907

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