Following separation, parents are faced with difficult decisions, such as who the children should shall live and how long they should spend with each parent. However in some cases, parents can be faced with the daunting and upsetting prospect of their child or children moving away. This could be by way of internal relocation – that is to say, within the UK – or external relocation – in other words, abroad.
There can be various reasons for this upheaval, such as the parent with care moving closer to family and friends, or them getting a new job. However, every case is different and must be considered according to its own circumstances and facts.
Inevitably, relocation will affect both parents, as well as the children, although the law is focused quite rightly the welfare of the vulnerable child. In most relocation cases, parents will seek judicial intervention by way of an application to Court. This is because there is often no prospect of parents reaching an agreement through negotiation and/or mediation.
Of course, the details of each application will vary, depending upon the circumstances of each case. For example, in some circumstances an urgent prohibited steps order (an order forbidding certain actions) may be required to prevent an imminent removal. There may also be a child arrangements order in place, setting out how much time the child should spend with each parent. Your solicitor will be able to advise on the most appropriate application.
The principles applied by the courts to each case can be complicated. In summary they seek to strike a balance between the primary carer who wants to relocate, the effects of the move on the children, and their relationship with the parent left behind.
There is a vast amount of case law on the subject, including several cases within the Court of Appeal. The recent case of Re: C (Internal Relocation) followed on from K v K (International Relocation: Shared Care Arrangement) and sought to provide clarity on external relocation cases. Re F (A Child) is also important as it endorses the approach taken in K v K that essentially the court is primarily concerned with welfare and welfare alone. It indicates that the approach and principles in the much discussed case of Payne v Payne should serve as guidance alone. In K v K and Re F the following principles were highlighted:
- The Court’s task is to undertake a global, holistic, comparative evaluation of welfare issues to determine what is in a child’s best interests.
- The wishes of a child are a significant and relevant factor.
- The Article 8 rights of the children and parties in a case (to private and family life, under the European Convention on Human Rights) should be considered when evaluating the proportionality of what is proposed.
- It is more important to look at what is happening on the ground, rather than trying to fit the facts of cases into closed ‘categories’.
- The Court should be careful, when interpreting the jurisprudence, to differentiate between ‘guidance’ and ‘principle’, only one of which is binding.
- Guidance from other cases should be considered, but every case is different and different factors to be considered in each.
The same principles were also considered in the more recent case of AZ (Child: Relocation to Poland). In this case, the court declared that the mother could relocate back to Poland with the child. Again, this was on the basis that it was deemed to be within the child’s best interests.
There has been a vast amount of case law in relation to internal cases, with a similar examination in many of the links between ‘principles’ and ‘guidance’. The key principles of welfare and proportionality in internal relocation cases are just the same as those in international cases. Until relatively recently, the parent with primary care for the child could usually relocate anywhere in the UK, except in very rare circumstances. But nowadays the courts apply the same principles in internal relocation applications as they do in international ones. The courts believe the two should be consistent. Lady Justice Black summarised this point in Re. C as follows:
“The situation seems to be to have been very like that which developed in relation to external relocation, with the guidance provided in Payne v Payne being taken to be binding legal principle when, in fact, as K v K identified, the only authentic principle running through the entire line of external relocation cases was that the welfare of the child was the Court’s paramount consideration. When one goes back over the authorities on internal relocation, I think it is clear that the same has happened there.”
As we discussed earlier, the relocation of children can affect the lives of both parents. Not only do the Courts need to consider the principle of proportionality in such circumstances, but also need to the right of the other parent to a family life. In addition, Section 1 of the Children Act requires the welfare of the children to come first.
In Re C, it was made clear that in considering proportionality, the Court should review these principles as part of a holistic balancing exercise. For example, a planned local move is likely to have a minimal effect on the relationship between the child with the parent left behind. Lady Justice Black said:
“…At one end of the spectrum, it is not to be expected, for instance, that the court will be likely to impose restrictions on a parent who wishes to move to the next village, or even the next town or some distance across the country, and a parent seeking such a restriction may well get short shrift. At the other end of the spectrum, cases in which a parent wishes to relocate across the world, for example returning to their original home and to their family in Australia or New Zealand, are some of the hardest cases which the courts have to try and require great sensitivity and the utmost care…”
It was stressed that the court should look for positive solutions, particularly in relation to the parent left behind.
In conclusion, the principles have been summarised as follows:
- There is no meaningful difference between internal and external relocation and ultimately both depend on the best interests of the child or children.
- The wishes, feelings and interests of both parents are important, but the welfare of the child or children will remain central to the case.
- The Court is likely to still find the Payne v Payne considerations helpful as a checklist to help balance what is within the child’s best interests.
Due to the complexities and vast case law, this post can only offer a brief summary of the issues. But it’s clear there is no black and white answer to these matters. Each case is different and it is always advisable to seek the assistance of a family law specialist. They will be able to provide tailored advice specific to each case.