UK Law and Practice Contributed by: Emma Post and Nicki Beale, NE Family Law
“No Delay” Principle There is no set timetable or timeframe within which applications should be determined, but the general principle is that delay is prejudicial to the welfare of the child. Section 1 (2) of the Children Act 1989 provides for a “no delay” principle, and the court has a positive duty to consider delay at all stages of proceedings. 2.3.10 Primary Caregivers Versus Left-Behind Parents In all relocation applications in England and Wales, the welfare of the child is the paramount consideration. The court will need to carefully consider the proposals of both parents in conducting its analysis of the wel - fare checklist with the child’s interests at the centre. The proposals need to be considered on their own merits and side by side. The exercise has been said to be “holistic” in that the proposals of each parent need to be considered as a whole, not in a linear way (as per Re F (a child) (permission to relocate) (2012) EWCA Civ 1364, (2013) 1 FLR 645). The case law is clear that there is no pre - sumption in favour of either the primary care giver or the left-behind parent. 2.4 Relocation Within a Jurisdiction There is no automatic restriction for moves within the UK. Section 13 (1)(b) of the Children Act 1989 only applies to relocations outside the UK – ie, England, Wales, Scotland and Northern Ireland. Therefore, parents do not need each other’s consent to relocate within the UK. However, while treated as an internal move, once the move has taken place the jurisdiction of the court in England and Wales ceases, so consideration would need to be given to registration and enforce - ment issues (much the same as when the move is international). A move within the UK can give rise to applications under Section 8 of the Children Act 1989 to regulate the proposed move, such as: • a specific issue order allowing the relocation or to determine schooling (which has the effect of deter - mining the application to relocate);
• a prohibited steps order to prevent the relocation; and • a child arrangements order to determine where the child lives. The legal framework is the same as in international relocation cases; in the event of an application to prohibit or allow the move, the child’s welfare is para - mount, and judges must approach the welfare ques - tion with reference to the welfare checklist – the fac - tors for determining the application are as set out in 2.3 Application to a State Authority for Permission to Relocate a Child . A key case is Re C (internal relocation) [2015] EWCA Civ 1305; [2017] 1 FLR 103. A parent who is named as the parent with a “lives with” order can take that child outside the United Kingdom for a period of up to one month, without the consent of the other parent or permission of the court (as per Section 13 (2) Children Act 1989). If that parent intends to be outside the UK for a period of longer than one month, consent of those with PR or permission of the court would be required. If There Is No “Lives With” Order in Place and No Consent From Those With PR It is an offence for a person connected to a child under the age of 16 to remove the child from the United Kingdom without the appropriate consent or leave of the court (Section 1 (1) Child Abduction Act 1984). A “connected” person is defined by Section 1 (2) of the Act as being connected to the child as follows: • he is a parent of the child; • in the case of a child whose parents were not mar - ried to (or civil partners of) each other at the time of the child’s birth, there are reasonable grounds for believing that he is the father of the child; • he is a guardian of the child; • he is a special guardian of the child; 3. Child Abduction 3.1 Legality If There Is a “Lives With” Order in Place
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