1 Under what circumstances may a parent lawfully remove the child to another state without the other parent’s consent?
The law of Northern Ireland makes provision for the lawful removal of the child from the UK. Article 13(1) of the Children (Northern Ireland) Order 1995 allows a person with a residence (custody) order in respect of a child to remove the child from the UK for a period of less than one month.
This is consistent with Article 3(2A) of the Child Abduction (Northern Ireland) Order 1985 which provides that a person does not commit an offence by taking or sending the child out of the UK if s/he is a person in whose favour there is a residence order in force and the removal is for less than a month (provided there is no order prohibiting the removal of the child).
If there is no residence order in force and the mother has sole parental responsibility she can lawfully remove the child from the UK without the permission of the father. However, a father who does not have parental responsibility may endeavour to prevent the removal of his child from the jurisdiction by applying to the courts in Northern Ireland for a prohibited steps order. He may also apply to the courts for an order which confers parental responsibility (“parental responsibility” is defined in Article 6(1) of the Children (Northern Ireland) Order 1995 ) or a residence order (if the court grants a residence order in his favour it must also grant a parental responsibility order) .
2 Under what circumstances is the other parent’s consent necessary for the child’s removal to another state?
Article 13 of the Children (Northern Ireland) Order 1995 provides that, if a residence order is in force with respect to a child, no one may remove the child from the UK for more than a month without the written consent of every person who has parental responsibility for the child, or the permission of the court.
Furthermore, Article 3(1) of the Child Abduction (Northern Ireland) Order 1985 provides that a person who is connected with a child commits an offence (abduction of a child) if s/he takes or sends the child outside of the UK without the appropriate consent.
Where there is no residence order in place but more than one person has parental responsibility for the child, no person with parental responsibility for that child is allowed to remove the child from the UK without the consent of the other holders of parental responsibility or the permission of the court.
3 If the other parent does not consent to the child’s removal to another state, though it is necessary, how can the child be removed lawfully to another state?
A parent with a residence order concerning the child and who is seeking to remove the child permanently from the UK can lawfully relocate with the child without the intervention of the court if they have the written consent of the other parent with parental responsibility or anyone else with parental responsibility. If consent is refused, an application to the court will need to be made for permission to remove the child from Northern Ireland on a permanent basis (Article 13(1) of the Children (Northern Ireland) Order 1995).
In the UK the paramount consideration and determining factor in international relocation cases will always be the welfare of the child. Judges sitting in the Family Courts in Northern Ireland will take into account all the information available to them in each case before arriving at an independent judgment. They will seek first and foremost to make decisions that are in the best interests of the child concerned.
If there is no residence order in place, a person who has parental responsibility for the child and who is seeking to remove the child permanently from the UK should always seek the other parent’s consent or the permission of the court to do so. Otherwise s/he will prompt a complaint of child abduction.
4 Do the same rules apply to temporary removal (e.g. holiday, healthcare etc.) and permanent removal? If applicable, please provide relevant consent forms.
The response to question 1 above sets out the provisions for lawful removal of a child from the UK for a period of less than one month. A person with a residence order in favour of the child can take the child abroad for less than one month and will therefore not need the permission of the other parent to take the child on holiday.
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