Apr 23

Comment from our Head of Family Department, Aaron O'Malley

Posted by gowenstevensadmin on Saturday 23rd April 2016

I read with interest the news coverage of the Australian, Sally Faulkner, who has been arrested in Beirut on charges of allegedly kidnapping her own children. A question we in the family department at Gowen and Stevens are often asked concerns the ability of the primary carer of the children to relocate within or outside this jurisdiction.

The general principle is that a mother with primary care is entitled to move with the children within the jurisdiction without the prior consent of the father or the leave of the Court – whether or not the mother has a Child Arrangements Order stipulating that the children live with her.

However, Section 2.8 of the Children Act 1989 says “the fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any Order made with respect to the child under this Act”. This means that if there is an existing Order making provision for contact, then a move with the children of a considerable distance within the jurisdiction might well mean that the move is incompatible with the provisions of the Order on the basis that the move would make contact impractical if not impossible. Effectively, if there is a child arrangement order in place, it would be unlawful for the mother to make the move without either the father’s consent or the permission of the Court.

Section 13 of the Children Act 1989 prevents a person removing a child from the UK without either the written consent of every person who has parental responsibility for the child or the leave of the Court. Section 1 of the Child Abduction Act 1984 sets out that “a person connected with a child under the age of 16 commits an offence if he takes or sends out of the UK without the appropriate consent” of the mother and father (if he has parental responsibility).

The Hague Convention on International Child Abduction stipulates that the removal of a child from the UK without the consent of the other parent is in and of itself “wrongful taking”. However parents who have a Child Arrangement Order in place which nominates them as the parent with residence are permitted to take the children abroad for a period of less than 1 month.

Therefore, the primary carer of the children has an independent right to move within the jurisdiction with the children provided that the mother does not breach a Court Order in doing so. With internal relocations the attitude of the courts has been that it would generally be in the children’s best interests for reasonable moves to be permitted and the onus would be on the objecting parent to show good reason why they should not be permitted.

Where international relocation is proposed the onus is on the parent wishing to leave the jurisdiction with the children to seek the court’s permission in the absence of an agreement with the other parent. The permission of the Court will be considered on the basis of established case law which requires a balancing exercise weighing up the relevant factors which determine the welfare of the children as that is always the court’s paramount consideration.

If you feel that you need advice about any issues discussed in this article then please do not hesitate to get in touch with the Family Law team here at Gowen and Stevens.