In the recent case of Re C, the Court of Appeal has given some useful guidance regarding the principles to be applied to cases involving internal relocation with a child. A parent who has the care of children who is separated from the other parent and who wishes to relocate within England and Wales will need to bear in mind the legal restrictions in doing so. In an important judgment, the Court has made it clear that there is no reason to differentiate between cases of internal relocation and those where the child would be taken out of the country.
In the case of ‘Re C’, a mother applied to the Court for an order permitting her to move with the parties’ 10 year old daughter (‘C’) from London to Cumbria. At the time, both parents had been living in London and the father had significant involvement in C’s life.
The judge first hearing the case permitted the mother to move to Cumbria with the child. There were two significant factors that influenced the judgment: firstly, ‘C’ had expressed that she was keen to move and secondly, the mother would find it difficult to be a ‘satisfactory’ mother if she were not allowed to relocate. The Judge thought the mother’s desire to move was genuine and not motivated by a wish to exclude the C’s father from her life. Remaining in London was judged to be “much less conducive to C’s well-being than is the move to Cumbria“.
It was therefore ruled that ‘C’ was allowed move to Cumbria with her mother and to live with her father on alternate weekends, or, if the father was able to travel to Cumbria during the week then ‘C’ would be able to stay with him for up to two nights a week. In addition, holidays were divided equally between the two parents.
The father appealed against this order.
The position before Re C
Historically, internal relocation and external relocation cases have been approached differently by the courts. Mrs Justice Black who heard Re C identified a tradition that has been adopted whereby those parents that wish to relocate internally have been accorded greater freedom to do so than in external relocation cases. The generally accepted position was that there had to be something exceptional to stop a parent moving within England and Wales.
The Judge acknowledged that it is, in fact, extremely difficult to justify a separate regime between internal and external relocation on the basis of the distances involved in the two types of relocation. Internal relocation can create just as much, if not more, of a geographical and logistical barrier between the child and their other parent as external relocation. For example, a parent and child moving to Carlisle from London potentially creates far greater difficulty than a parent and child moving from London to Paris.
The Judge concluded that, “There is no doubt that it is the welfare principle in section 1(1) of the [Children] Act which dictates the result in internal relocation cases, just as it is now acknowledged that it does in external relocation cases.”
In other words – Judges being tasked with the decision of whether a parent and child can move must now simply decide what will be best for the child in all the circumstances.
The position now
The position now stands that there is not necessarily any difference in the basic approach taken by the Courts in external relocation cases and internal relocation cases. Ultimately, the child’s welfare will be the most important consideration in any decision. The wishes, feelings and interests of the parents will be of great significance, when determining what is in the child’s best interests and considering the child’s welfare.
In addition, the ‘exceptionality test’, namely that a parent seeking to relocate within the UK should only be prevented from relocating in exceptional circumstances is not a binding legal principle.
In Re C the Judge suggested a list of considerations for the Court (from a previous case involving an international move) when deciding whether to allow a parent to move within England and Wales:
- The welfare of the child is always paramount.
- There is no presumption in favour of the parent wishing to leave.
- The reasonable proposals of the parent with a residence order wishing to move carry great weight.
- Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
- The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
- The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
- The opportunity for continuing contact between the child and the parent left behind may be very significant.
For those who are thinking about relocating, it is extremely important to make complete and detailed plans for life after the move. Where will you live? Have you secured work? Where will your child go to school? What support network will you have in the area? Etc. If the case ends up before a Judge – they will expect the plan to be fully-formed.
It is also important to make clear and robust plans as to how the “left-behind” parent will continue to be involved in a child’s life. The Court will consider the child’s relationship with the left-behind parent as one of the factors in analyzing the child’s welfare. Communication via Skype or other video communication will help to maintain a relationship and thought should be given to travel arrangements and how holidays will be spent.
For further information contact our Family Law team on 020 7240 0521.