When I was two years old, my mother and I relocated from London to Yorkshire. My parents had split up, my mother needed the support of her family in Yorkshire and my father needed to be in London for his job. Thankfully my parents agreed on this arrangement and did not need to go through the courts. I have always maintained a very good relationship with my father. I could not see him every day, but he called every night and I saw him every other weekend.
Looking back, I’m sure it was not my father’s idea of an ideal situation. However both of my parents made it work and now, even in my 20s, I still speak to both parents on a daily basis. In the cases where relocation is permitted, it will always be hard for the parent left behind. However it is possible to maintain a good relationship, and I know this from personal experience.
In this post I’m going to look at the relocation of children within the UK. The tests that are applied are quite different to the tests that are applied when a parent wishes to move, with a child, to another country. What both sets of tests share is that the child’s welfare is considered paramount.
The test of exceptionality
The test for whether to allow an application to relocate within the UK is the test of exceptionality. It was created by the case of Re E (Residence: Imposition of Conditions)  2 FLR 638, which was the first reported decision of the Court of Appeal in relation to the relocation of a child within the UK.
In this case the mother was granted residence of the children, but with the condition that they reside at a named address unless otherwise ordered or agreed by the father. The mother appealed this on the basis that if a residence order was granted in her favour, there should be no imposition upon her right to choose where she and the children should live within the UK.
Lady Justice Butler-Sloss agreed with this in her judgment allowing the appeal, but stated that “there may be exceptional cases” in which the court may have concerns about whether the parent is a satisfactory carer for the child, but there is no better solution than to place the child with that parent. In cases such as these the court may consider it necessary to place certain conditions over the parent, including a condition of residence, in order to keep some control over the parent. In that short phrase, to use Lord Justice Wilson’s words, “thus were the seeds of a new test sown”.
The case of Re S (A Child) (Residence Order: Condition)  EWCA Civ 847 examined the test of exceptionality. Lord Justice Thorpe stated that Lady Justice Butler-Sloss was simply trying to safeguard against never saying never in family litigation, but that imposing restrictions on the primary carer regarding where they should live was only in “highly exceptional” cases. Lord Justice Clarke affirmed this, stating that “a condition should only be imposed in genuinely exceptional cases”.
The problem is that “exceptional” cases are not defined. In Re E, Lady Justice Butler-Sloss gives an example of what she would consider an “exceptional” case, but there is no definitive list or guidance. In Re S the Court ordered, “with considerable regret”, that the appeal be allowed and to remit the case for reconsideration by the county court.
This case was then further appealed in Re S (A Child) (Residence Order: Condition) (No 2)  EWCA Civ 1795. By this time exceptionality had become part of the principle. Lady Justice Butler-Sloss made reference to “the principle enunciated in Re E … that the court ought not in other than exceptional circumstances to impose a condition on a residence order to a primary carer who is providing entirely appropriate care for the child.”
In that instance the appeal was dismissed. The mother was bound to the order, which placed restrictions over her right to relocate within the UK, stating that she must remain in the Croydon area. The test of exceptionality was further examined in this judgment. Lady Justice Butler-Sloss referred to her judgment in Re E:
I did not intend in my judgment in re E to exclude the possibility that an exceptional case might arise in which a parent against whom there is no complaint might nonetheless have to face some restriction of movement.
She describes section 11(7) of the Children Act 1989 as a “safety net” that the court may use in exceptional circumstances to impose restrictions on the primary carer of the child, when the paramount status of the child’s welfare requires them to do so.
The recent case of Re F (Internal Relocation)  EWCA Civ 1428 criticises the test of exceptionality. This case concerned a mother who wished to relocate with her new husband and four children to the Orkneys. She was a GP, as was her husband who had strong family links to the island, and they had accepted a job share there. The mother had applied for a specific issue order allowing her to move with the four children from their home in North East England. The father opposed the application. In the first instance the application was refused and the mother subsequently appealed this decision.
In his judgment, Lord Justice Wilson referred to the Children Act 1989 and made his feelings about the test of exceptionality very clear:
It is too late for it to be permissible for this court to rule that, in internal relocation cases, the analysis of the child’s welfare, informed by consideration of the matters specified in section 1(3) of the Act, should not be conducted through the prism of whether the circumstances are exceptional. The recorder thus rightly asked himself whether the circumstances were exceptional; his answer was that they were; and the main thrust of the appeal is that he was plainly wrong so to have concluded. But, for the reasons given, I believe that, had I not felt bound by authority, I might have wished to suggest that a test of exceptionality was an impermissible gloss on the enquiry mandated by section 1(1) and (3) of the Act.
Lord Justice Wilson dismissed the appeal, because the children’s welfare required it: some of them had expressed strong views about not wanting to move. In doing so he was ruling that the previous judge had not made any error in his judgment. Lord Justice Wilson reluctantly concluded that in reaching this conclusion the case was deemed exceptional, but said that he did not agree with the case being interpreted as such.
This, for now, is the test that we have. It is hoped that eventually there will be some consistency between the rules applied to internal and external relocation. Why should a case have to be “exceptional” to place restrictions on where a parent should live if they wish to relocate within the UK, when there is no such need if the parent wishes to move to a different country?
In cases involving relocation there will always be a party that is left feeling unhappy but I do not think it is right that some of these cases have been labelled as exceptional. To me it seems quite normal that when one parent wants to relocate, the other parent is opposed to it because they do not want to lose that contact with their children. If the test of exceptionality is to remain then, to my mind, it is imperative that some clearer guidance is given as to what an “exceptional case” amounts to.
Laura Guillon is the principal trainee solicitor at Stowe Family Law, assisting the Senior Partner. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.