The Court of Appeal have recently reviewed the case law on internal relocation in Re C (Internal Relocation) [2015] EWCA 1305 and clarified the law and approach to be applied to such cases.
Internal relocation is when a parent wishes to move within the UK e.g. from London to Belfast or Manchester to Birmingham. The case law prior to Re C (Internal Relocation) (supra) had evolved to the point where it seemed to be that a parent would not be prevented from relocating within the UK unless there were ‘exceptional circumstances’. That approach differs from the law of external (international) relocation which is that the court must decide what is in the best interests of the child when balancing all relevant factors – see the recent case of Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882 per Ryder LJ.
Case Summary
The parties were in a relationship for 3 years but did not marry. They had a daughter, C, now 10 years old. When the relationship broke down in 2007, the father bought a flat in London near to his home where the mother and C lived rent-free on the condition that the mother has to leave the flat when C turns 18. The father made it clear that the flat had to be close to his home.
The mother wished to move from London to Cumbria with C. The father did not consent to the move and wished for mother and C to remain in London with a holiday home in Cumbria. The CAFCASS officer felt the case was finely balanced but recommended that C did not move to Cumbria.
The mother was granted permission to relocate to Cumbria. Contact with the father was to take place on alternate weekends alternating between Cumbria and London. There was also to be overnight contact in Cumbria for the father if he was able to travel there during the week and daily indirect contact by phone, Skype or Facetime. Holidays were to be divided equally between the parents.
An important reason for the lower Court’s decision was that C told the CAFCASS officer she was keen to move to Cumbria and she understood that by moving, she would not see her father during the week. Other reasons included:
- The mother’s application was genuine, well-researched and realistic. She was moving closer to her family and her hometown. She could work more easily in Cumbria. Her application was not motivated by a desire to exclude the father.
- There were problems with the flat where the mother and C currently lived and it would be best for the mother to get on the property ladder before C turned 18.
- C would still be able to maintain a meaningful relationship with her father if she moved. Any change in contact would be quantitative not qualitative. The move therefore would not be emotionally damaging for her.
- If forced to stay in London, the mother would feel deeply unhappy and those feelings were likely to have a serious and very harmful impact on C.
The father appealed. The Court of Appeal unanimously dismissed his appeal and upheld the lower court’s decision to grant permission to relocate.
So what is the law?
After reviewing the case law on internal relocation (see paragraphs 18 – 61), Lady Justice Black confirmed that the only principle to be applied in internal relocation cases is that the welfare of the child is paramount. She explained that judges can use the welfare checklist and the guidance given by the Court of Appeal to help them assess what is in the best interests of the child but that the only question to that should be asked is whether the relocation is or is not in the best interests of the child.
Lady Justice Black was not persuaded and indeed could not see any good reason for the approach of the Court to differ depending on whether the relocation was internal or external. Reasons proposed by Thorpe LJ in Re H (Children)(Residence Order) [2001] EWCA Civ 1338 for the differing approach included that there were “the same system of laws” within the UK and that a move outside of the UK “may require a much greater adjustment for the children” and “obstacles to contact may be enhanced”. Lady Justice Black rightly stated that there is not the same system of laws with the UK; Scotland and Northern Ireland have their own legal systems different to that of England & Wales (albeit that the highest court for all those jurisdictions is the Supreme Court). Further, the issue of enforceability and the distance to be travelled by the children or non-resident parent for contact are relevant factors to be considered when deciding what is in the best interests of the child.
Regarding the approach that had arisen in respect of there having to be exceptional circumstances for a Court to prevent an internal relocation, Lady Justice Black’s view of the case law was that it was clear that an internal relocation will be prevented if it is incompatible with the welfare of the child. Indeed, she explains (at paragraph 51) that “it is clear that one of the main influences behind the exceptionality ‘test’ was always the welfare of the child”.
Mr Justice Bodey summarised the proper approach to the issue of relocation at paragraph 85 as follows:
- There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.
- The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child.
- In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.
Comment
The clarification of the law on internal relocation is most welcome. Whilst it will not make it easier for practitioners to advise clients on the potential outcome of a case, it will assist in helping a parent remain child-focused when making or resisting an application.
The guidance in Payne v Payne is of great assistance when scrutinising the practicalities of relocation proposals. To look at the motivations behind the proposed relocation and the opposition to the same falls within the parent’s capability to meet the child’s needs as it goes to whether a parent can prioritise the child’s needs. Considering whether the proposal for relocation is well-researched and investigated includes considering the physical and educational needs of the child (who will care for them, what school they will go to, etc.) and the likely effect on the child of change in circumstances. Assessing the impact on both parents if the application for permission to relocate if granted or dismissed clearly relates to a risk of harm to the child (whether directly or indirectly).
We have specialist solicitors in our family law department at Hanne & Co who are trained to help you negotiate an agreement without recourse to the courts and can assist you thoroughly should proceedings become necessary. Please feel free to contact us on 020 7228 0017.
Nicole Bryan-Quamina
Paralegal
