13 June 2018
A consequence of the breakdown of some relationships is that one party will decide to relocate. However, where the parties have children, the issue of relocation can be an extremely contentious one. On what basis do the English courts decide whether a parent should be allowed to relocate with a child away from the other parent, and should the approach be the same if the relocation is within the UK or abroad?
In December 2015, the Court of Appeal handed down its decision in the case of Re C – an appeal by a father of an Order allowing a mother to move from London to Cumbria with the parties' now 10 year old child. The case has provided much needed clarity in relation to when a court should allow a relocation and whether the considerations differ between internal (within the UK) and external (outside the UK) relocations.
Historically, the courts have treated internal and external relocations differently, but it has long been deliberated whether they should do so. Why shouldn't the courts approach a relocation from London to Belfast (Northern Ireland being part of UK) in the same way as a relocation from London to Dublin (Ireland being outside the UK)? It is acknowledged that as well as jurisdictional considerations, distances and geographical barriers can be greater within the UK than between the UK and other countries. This was considered in an earlier case, Re F (Internal Relocation)  EWCA Civ 1428, where the court dismissed a mother's appeal of an order that she should not be allowed to relocate with her children from the north east of England to the remote Scottish islands of Orkney, off the northern tip of the mainland.
In practice, no one (be they a parent or third party) should remove a child from the UK without the written consent of those with parental responsibility (which all mothers and most fathers have) or permission from the court. If there is a court order governing with which parent a child lives (a 'child arrangements (residence) order'), the 'resident parent' may take the child out of the UK for up to 28 days without the other parent's permission. However, if there is no child arrangements order, removing a child from the country without the consent of those with parental responsibility may constitute a 'wrongful removal.' The left behind parent could apply for the child's immediate return to the UK and such removal might also be a criminal offence (under the Child Abduction Act 1984). However, the success of such applications is sometimes heavily influenced by the country to which a child is taken.
There are no such restrictions when it comes to a relocation within the UK, unless there is already an order of the court imposing conditions on where the child lives. Therefore a parent will only be constrained by a court order prohibiting them from moving.
The Court of Appeal in Re C reviewed extensive case law looking at how the separate approaches to decisions in external and internal relocations had developed. A long line of internal relocation cases indicated that the court's approach was that unless there were exceptional circumstances, a relocation within the UK should be permitted – an apparently much lower bar to relocation than in international cases.
The facts of Re C are straightforward. The mother and the father were unmarried but had been in a three-year relationship, which ended in 2007. The father had regular contact with the daughter who spent two nights a week and every other weekend with him. The mother and daughter lived close to the father in Central London in a flat purchased by the father for them to live in until the daughter reached the age of 18. In early 2014 the father applied to the court to formalise their shared care arrangements and requested an extension of his weekend time to Monday mornings. The mother applied for a specific issue order permitting her to move with her daughter from London to Cumbria where she would start at a new school, and where the mother would be nearer to family, able to find work, could better afford to buy her own property and able to enjoy a better quality of life.
The Judge (a Recorder) who heard the case granted the mother permission to relocate with the child to Cumbria. The father appealed on the basis that the Recorder improperly elevated the importance of the mother's feelings in the event that her application was refused, while failing properly to take into account the impact of the move on the relationship between the father and child. The Recorder had not followed the advice of the court-appointed welfare officer who recommended that although the case was finely balanced, the mother should not relocate. The Recorder had taken account of the wishes and feelings of the child, who had expressed a wish to move, and disagreed with the court-appointed welfare officer that the child did not fully appreciate the realities of the move. He considered her wishes to be clear and properly reasoned.
The Court of Appeal dismissed the father's appeal. It confirmed that the governing principle in both internal and external relocation cases is that the welfare of the child is paramount, meaning there should be no difference in approach. Contrary to what had been suggested in earlier case law, there is no 'exceptionality' test which aims to protect the primary carer's autonomy to relocate in the UK. However, the Court of Appeal decided that the Recorder had not been wrong in the way he had taken into account the wishes and feelings of the mother, because he had done so as part of the overall welfare decision.
In considering the impact on the father, the court held that there will inevitably be an interference his rights to a private and family life (under Article 8 of the European Convention on Human Rights) if the relocation is allowed. However, while the interests of the parents should be taken into account, if it is not possible to accommodate everyone's wishes; what is in the child's best interests will override everything else.
The case of Re C raises the bar for applications for internal relocations – no longer will it be the case that an internal relocation will be only be refused in exceptional circumstances. As such, those wishing to relocate in the UK can expect their plans to be subject to greater scrutiny from the court. They must be able to demonstrate to the court that the move is in the child or children's best interests and furthers their welfare.
The effect of this case is that in some cases it may now be easier for a parent to seek to restrict the other parent's ability to relocate within the UK than previously. Although it remains the case that permission is not automatically required for an internal relocation, for the parent wishing to move, a practical consideration will be whether pro-actively to make an application to the court for an order granting permission to move (an application for a specific issue order), rather than defend a potential application from the other parent restricting relocation (an application for a prohibited steps order). The first step in any case where a move may have an impact on a child's time with a parent (i.e. other than a local one) must be to seek agreement from that parent.
Long gone are the days when most people spent their lives in one locality. As more of us are moving around – whether for employment or relationship reasons, to be closer to family or even just in search of sunnier climes – applications for relocations will continue to be some of the most challenging the family courts have to deal with. This decision which provides greater clarity on how the courts should approach such cases is welcomed by family practitioners.