While the law on internal relocation has not changed in some time, we feel that an overview of the fundamental principles and judicial guidance provided over recent years can be helpful to professionals across the board. You’ll find this article useful, whether you are considering this area of practice for the first time or whether you need a memory refresher as a seasoned practitioner in private children proceedings.
Relocation is a significant decision to make by any parent, especially when considering the likely impact it will have on their children. Children will have to adapt to a whole new environment, often going long periods of time without seeing familiar faces. This is not to mention the challenges of having to make new friends and changing their routines away from activities deep rooted well within their communities.
The courts approach this decision the same way; they see it as one of the more consequential decisions within the realm of parental responsibility, which require consultation with any other holders of parental responsibility. Those who relocate children, without consent or an order from the court, do so at their own risk. As we know from BB v CC (Residence Order) [2018] B78, the court has the power to order children to be returned and can do so on a summary basis, if this is appropriate in meeting the child’s welfare as highlighted in R (Internal Relocation: Appeal) [2016] EWCA 1016. Nevertheless, such applications to relocate within the UK will be dealt with either by way of a specific issue order to permitting the move or a prohibited steps order preventing it.
The framework to this area of practice is governed by the welfare principle in Section 1(1) of the Children Act 1989 (“the Act”), which brings it in line with its external counterpart. In this respect, the welfare of the children is referred to as the ‘only authentic principle’ and the court’s paramount consideration as discussed by Thorpe LJ at paragraph [141] in K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793. This involves a holistic and multi-faceted balancing exercise, which is completed by way of reference to the welfare checklist in Section 1(3) of the Act.
Accordingly, while the legislative framework governing this realm of family practice is simple and uncomplicated, its application to the relevant circumstances in each case can be difficult. Perhaps, additional challenges arise in predicting the outcome of cases, since all will depend on the objective application of the welfare principle to a subjective set of facts, which vary from case to case. Nonetheless, as emphasised by Ryder LJ at paragraph [29] in F (International Relocation Cases) [2015] EWCA Civ 882, judges may be assisted in this exercise by adopting a ‘balance sheet’ approach. This will allow judges to weigh the relevant factors in each case against one another, with the objective of determining the best possible option to meet the welfare of the child moving forward.
The Court of Appeal cleared up the long-misconstrued presumption, where previous authorities had been mistakenly interpreted to impose a supplementary requirement of exceptionality when refusing applications to internally relocate. This was clarified by Black LJ at paragraph [53] in the leading case of C (Internal Relocation) [2015] EWCA 1305, emphasizing that previous authorities could not be interpreted as such. Black LJ stressed that the courts will be hesitant in preventing a parent from exercising their right to choose where to reside in the UK unless the welfare of the child so requires. However, this was not because of an additional requirement of exceptionality, but rather for the reason that the welfare analysis leads to such a conclusion. This provides notable clarity to the approach on internal relocation, bringing the legal test wholly in line with external counterpart. Consequently, much of the analysis prescribed in external/international relocation cases such as K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793 and Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 apply to internal relocation cases too. For further guidance on such analysis, please do refer to our article titled ‘Children Act: International Relocation’ for the sake of avoidance of repetition.
Nonetheless, this does not prevent the courts from drawing on the guidance provided in previous authorities. Judges and practitioners across the board will find the guidance in Payne v Payne [2001] All ER (D) 142 (Feb) useful, where at paragraph [40], Thorpe LJ provided insight into the forensic exercises the courts will have in mind when considering applications to relocate; (i) is the applicant’s application genuine and realistic?; (ii) is the respondent’s opposition to the application genuine and what is the extent of the detriment suffered by the them?; (iii) what would be the impact on the applicant if their realistic application is refused?; (iv) the outcome of the questions in (ii) and (iii) are then brought into the overriding review of the child’s welfare as the court’s paramount consideration. Nonetheless, Thorpe LJ also stated at paragraph [41] of Payne v Payne that he did not wish to diminish the significance that the Court of Appeal has steadily placed on the emotional and psychological wellbeing of the child’s primary carer. Yet, this should be purely taken as judicial guidance and does not change the fundamental legal principle, which is the that the welfare under S.1(1) of the Children Act 1989 is the court’s paramount consideration.
Parents are often under severe scrutiny throughout these applications. This is clearly not the intention of the court, which will only examine parents and their behaviour in respect of the effect such behaviour may have on the future welfare of the children. Justice Lieven DBE highlighted in the recent case of The Father v The Mother [2023] EWHC 1454 (Fam) that advocates should keep in mind the considerations raised by the Court of Appeal in K v K [2022] EWCA Civ 468. She stated at paragraph [5] of The Father v The Mother that “The Court is not there to consider what went wrong in the parent’s relationship (limited or extensive) in the past, save strictly to the degree it impacts on the decision concerning the child in the future. Equally, cross-examination about past failings (by both parents) is very unlikely to aid better future relations in the best interests of the child. If the family justice system is to have the slightest chance of dealing with cases in a timely and productive manner and to assist families in decision making concerning their children, then we all have to focus on the real issues and try to adopt a problem solving approach rather than a largely adversarial one.”
When making a decision on the potential for a child to relocate, the court will ultimately have to consider the parent’s right for respect for private and family life under Article 8 ECHR. This was recently referenced in The Father v The Mother [2023] EWHC 1454 (Fam), where Justice Leiven considered that, when the court is asked to undertake a global and holistic evaluation of the best interests of the child, the wishes and feelings of the parents, as well as how those will impact the child, will be of great importance. This is not to mention that the court will also be tasked with balancing the Article 8 rights of each parent against the other. However, this will ultimately be a proportionality exercise, whereby any interference with Article 8 rights will be weighed against the welfare interests of the child in each set of circumstances before the court, which again is the court’s paramount consideration.
As previously mentioned, this article is merely intended to provide an overview of the fundamental principles and judicial guidance on this topic. It cannot be stressed enough that this is a highly fact sensitive area of practice and consultation with specialists should be sought at the earliest possible opportunity, even before issuing, to maximise the likelihood of success on your application to relocate. Should you wish to seek legal advice, please do not hesitate to contact our clerks, who will connect you with one of our remarkable team of barristers.
Adham Sleem
