How do leave to remove applications work?

Joe Jonas (Jonas) and Sophie Turner (Turner) have been a celebrity “power couple” since 2016. They married in May 2019 and have two daughters; Willa (3) and a 14 month old. However, the fairy tale ended when Jonas filed for divorce in Miami on 5^th September 2023. Since then, the couple have been engaged in a highly acrimonious and public legal battle over their divorce and children.

Most recently, Turner filed a lawsuit in New York City on 21^st September alleging that Jonas was withholding their children’s passports and keeping them from their habitual residence in England. Allegedly, Turner intends to file an application for a custody of her children in England. Under English law this application would take the form of a Child Arrangements Order, which would set out who the children live with, the contact arrangements with the non-resident parent and typically outlines how each party will financially support their children.

According to media coverage, the parties allegedly agreed to relocate to England and their oldest daughter has been enrolled in nursery in England. The parties are also set to complete on the purchase of a property in Oxfordshire worth $9 million in early December. It therefore seems possible that Turner or both parents could relocate to England with the children.

Although, the issue of jurisdiction has yet to be decided, Flora Grossman (Partner – London) and Jake Van Kampen (Solicitor – London) have summarised the law applicable to an application made by Jonas to move the children away from their habitual residence under English law.

Leave to remove - overseas permanent relocation

Leave to remove applications are notoriously difficult cases bearing in mind the emotions and stakes involved. The court will take account of the distress caused to Jonas if the application is refused and any negative impact on his ability to meet the needs of their children. Conversely, they will also be aware of the significant disruption caused to the relationship between the children and Turner if it is granted.

Jonas would need to present a highly considered and practical plan for the children to be relocated, including realistic schooling plans and how contact would be facilitated between the children and Turner and her wider family in England.

Importantly, the courts have increasingly moved away from the guidance given in Payne v Payne, where the distress of the primary carer caused by failing to get permission was the most important factor in relocation cases. Recent case law emphasises the right of the child to have a meaningful relationship with active involvement from both parents in their upbringing.

It is now clear that the welfare of the child is paramount in relocation cases and the welfare of the parties’ daughters will come before any other factor argued by the parties in favour or in opposition of relocation. The court will apply a holistic evaluation where all options presented by the parties will be subject to analysis using the welfare checklist in s.1(3) of the Children Act 1989. The below factors could be relevant in an application brought by Jonas:

• 1. The children’s physical, emotional and educational needs – if the children have started education in England and are settled and happy, it may prove more of a challenge for Jonas to relocate the children to America particularly if schools are oversubscribed and the curriculum varies significantly to the curriculum taught by English schools;
• 2. How capable each of their parents are of meeting their needs – allegedly, the parties share care of their children based on their work commitments and the children are currently being cared for by Jonas due to Turner’s filming commitments. Jonas could raise an argument that Turner is away from home frequently and for long periods of time due to her employment and is therefore unable to meet the children’s needs and care for them as much as Jonas would be able to as the children’s primary caregiver;
• 3. Any harm the children have suffered or are at risk of suffering – Jonas will have to show that there is a feasible plan for contact to continue between the children and Turner despite living in different countries and perhaps how the children can still have exposure to British culture which allegedly Turner is keen for their children to have.

How we can help

For more information on leave to remove applications or to discuss private children law issues more generally, please contact us. We have a team of experienced family lawyers who can guide you if you think the issues raised in this article might apply to you. We can go through all the options available to you and help you decide your best course of action. Contact our experts to see what we can do for you.