23 March 2018
The 2015 case of Re C (internal relocation) appeared at the time to dramatically alter, and simultaneously clarify, the approach to be taken by the courts in relocation cases. Re C seemed to state that whether a relocation is internal or international, the same principles will be applied by the court in determining whether the move is to be permitted. This therefore provided clarity to a line of case law providing variable interpretations as to the weight to be placed on such factors as the intentions of the relocating parent.
In many ways, this new approach made sense. Given the ease of international travel today, moving a child to the other end of Great Britain may be just as difficult a move for the remaining parent, and indeed the child, as a move to mainland Europe, for example. Therefore it can be difficult to create and justify regimes based upon distances alone.
The case of Re R  attempted to take this amalgamation of approaches one step further. As well as aligning the principles applicable in relocation cases, the father in Re R sought to persuade the court that abductions, whether international or not, should be subject to 1980 Hague Convention type-proceedings and principles. Essentially, this meant the father was seeking a summary (and, so, immediate) return of his child from the North East of England back to Kent.
The father’s argument in Re R seemed premised on the notion that borders do not, or should not, make a difference in terms of the legal principles to be applied when deciding whether children can move across them or be returned over them, whichever the case may be.
The father characterized the actions of the mother as abduction. However, at present there is no legal requirement to obtain the permission of a court before a parent moves with their child within the UK. For the remaining parent to prevent an internal move, they must apply to the court for a Prohibited Steps Order, or a Child Arrangements Order, which could grant them a greater say in relation to such matters as where the child lives. This raises the question of whether internal parental abduction actually exists as a legal matter. The court in Re R advances on the basis that this is a case about abduction, as the father contends, without appearing to challenge this proposition or indeed the idea of domestic ‘abductions’ existing in the legal sense at all. The judgement is, therefore, in its terminology and approach to the discussion, quite confusing and potentially misleading.
However, accepting that Re R is a case about abduction, it can firstly be questioned whether principles from Re C, a relocation case, should apply here at all. It could be argued that relocation and abduction are in some senses similar actions, specifically in terms of the disruption and emotional impact that such a move may have on the parties and in particular a child. At the heart of both is the action of uprooting a child and placing distance between them and the other parent. However, crucially, in relocation situations a child would be more prepared for the move. Contact arrangements would be in place and the process of moving away would be a more gradual one. The fact that abduction is a wrongful removal without consent, with likely different motivations than a relocation and so an action which should be discouraged, would seem to make the direct lifting of a principle derived from relocation cases into one concerning abduction inappropriate.
Secondly, it is questioned whether such a merger of approaches was in fact what the court in Re C envisioned. The court in Re R said that Re C did not in fact represent a ‘sea change in the law’. What was central to relocation cases, whether internal or international, was the welfare of the child, and it was only in light of this notion (and so S1 (1) of the Children Act 1989) that the comment of the court regarding there being no need to differentiate between processes was made. The only apparent change in principle that did in fact emerge from Re C was that there is no exceptionality principle, meaning that it is not only in exceptional circumstances that relocating within the UK will be prevented.
Even if the court in Re C had said that internal and international relocation can be treated as the same, this integrated approach would not transfer to abduction easily. The example that the court took in Re R to highlight this concerned a key principle of the Hague Convention process, specifically summary returns. The summary return principle in international abduction refers to returning a child to their place of habitual residence, which is a broad concept, referring to a specific country and not a particular town or city. Therefore the concept as it exists in international abduction cases would not directly transfer to internal abductions.
Further, Re J  made clear that 1980 Hague Convention principles do not apply in non-Hague Convention cases, which essentially an internal abduction would be akin to. The court in Re J made clear that internal abduction remains a matter for Children Act proceedings, which does provide in many ways for a more favorable regime. The Children Act process can allow for more flexibility and for a deeper understanding of the wider circumstances of the case to be obtained prior to deciding whether to return the child or not. This can be particularly vital in cases where allegations of violence have been made. This contrasts to the Hague Convention’s strict prompt return principle. This does not allow for the merits of a case to be considered prior to return and so does not provide for discussions as to the welfare of the child.
In seeking to persuade the court that summary returns should be the usual response in internal abductions, the father relied upon such arguments that it would be in the best interests of the child that the status quo be restored, that the disruption to the child of being moved without the other parent’s permission could be great and that neither parent should have the power to make such substantial changes in their child’s life unilaterally. The court viewed all such arguments as relevant, but in relation to the wider and key consideration of what the welfare of the child required.
This case consequently appears to highlight a gap in the law. The left-behind parent when the child has only been moved within the UK is left without recourse to a system which can immediately, or even relatively quickly, provide for the return of their child. This then leads to a disadvantage if proceedings do arise, as by the time the case sees the inside of the court, the relocating parent and child have had a chance to settle into their new lives, and the discussion of welfare now also focuses on the harm should the child return to their original home and not just the harm concerning the move in the first place. The process therefore seems to reward the parent who decides to, potentially without any warning, separate a child from the other parent and familiar surroundings, which is not a position which sits comfortably with many.
However, the court in Re R did say that in some cases the right order would be to immediately return a child to their former place of residence. This could not be the standard response though. An immediate return following an internal unilateral move would remain the outcome of a case-specific, welfare-based evaluation.
It seems that Re R has provided clarification on two matters. Firstly, concerning both abduction and relocation, it has stated that Re C does not have the effect of removing the need for separate, border-based regimes. Secondly, it has reinforced that it is arguments based upon the welfare of the child which will remain determinative in internal abduction cases. (If such cases exist….).