Family Law Hub

Re C (Internal relocation) [2015] EWCA Civ 1305

The Court of Appeal has recently provided guidance about the principles that should be applied to applications for internal relocation in the case of Re C (Internal relocation) [2015] EWCA Civ 1305. Charlotte Trace of 29 Bedford Row summarises the main points.


  • Charlotte Trace, 29 Bedford Row

    Background

    The case concerned a mother who applied for a specific issue order permitting her to move with the parties' child ('C') from London to Cumbria. Both the mother and the father lived in London and the father had a considerable involvement in C's life there (two nights a week and every other weekend). 

    Decision at first instance

    At first instance Mr Recorder Digney permitted the mother to move to Cumbria with C. The evidence before the Recorder and his conclusions are set out in Black LJ's judgment at paragraphs 5 to 17. The Recorder found that the mother's application was genuine and not motivated by a desire to exclude the father, and that it was well researched and realistic. The Cafcass officer was concerned that the move "may be emotionally damaging for C as she will not be able to enjoy the type of relationship with the father that she has had for all of her life" and recommended that a move to Cumbria would not be in C's best interests. The Recorder disagreed with Cafcass' recommendation.  

    The two significant components of the Recorder's decision were: 

    (a) C's express view that she was keen to move and 

    (b) the Recorder's view that the mother would "find it very difficult to be happy and content and therefore a satisfactory mother if she is not allowed to relocate as she wishes".

    Remaining in London was, in the Recorder's judgment, "much less conducive to C's well-being than is the move to Cumbria".

    In addition to permitting the move, the Recorder made a child arrangements order with regard to the division of C's time between her parents: she was to live with her father on alternate weekend and if the father was able to travel to Cumbria during the week, C was to be in his care overnight for up to two nights a week. Holidays were to be divided equally. The father appealed. 

    Historical compartmental approach to internal and external relocation cases

    Black LJ comprehensively reviews the authorities at paragraphs 18 to 61 in light of the reappraisal of the law in relation to external relocation cases in K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793 and Re F (Relocation) [2012] EWCA Civ 1364 and in light of the changes in the law made by the Children and Families Act 2014 including the addition of section 1(2A) to the Children Act 1989. 

    Internal relocation cases and external relocation cases have historically been kept separate, the courts appearing to approach them differently. Black LJ discusses at length the possible explanations for what she terms "the compartmentalised approach". For example, she notes that a position has been adopted whereby the freedom of a parent to move appears to have been accorded greater weight in internal relocation cases than in external relocation cases. She goes on to state that it is difficult to justify a separate regime on the basis of the distances involved in the two types of relocation as demonstrated in Re F (Internal Relocation) [2010] EWCA Civ 1428 which concerned a move from the north east of England to one of the Orkney Islands and amply demonstrates that relocation within the UK can create just as much, if not more, of a geographical and logistical barrier between the child and his or her other parent as relocation abroad. 

    Black LJ confirms in her judgment that there should be no distinction between the approach in cases involving the relocation of a child within the jurisdiction and cases involving the relocation of a child to another jurisdiction. She says at paragraph 51: 

    "There is no doubt that it is the welfare principle in section 1(1) of the Act which dictates the result in internal relocation cases, just as it is now acknowledged that it does in external relocation cases."

    Exceptionality

    Black LJ discusses the rule that relocation within the UK could only be prevented in exceptional cases and holds that it was a gloss that should not be taken to be a binding legal principle. Black LJ said that she is not persuaded that "exceptionality" ever became a principle. She said that it appears to have developed in a similar way to that the guidance 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. Black LJ concludes in relation to "exceptionality" at paragraph 53:

    "Given the central thread of welfare that runs through all these authorities, and with the reasoning in K v K very much in mind, I would not interpret the cases as imposing a supplementary requirement of exceptionality in internal relocation cases. It is no doubt the case, as a matter of fact, that courts will be resistant to preventing a parent from exercising his or her choice as to where to live in the United Kingdom unless the child's welfare requires it, but that is not because of a rule that such a move can only be prevented in exceptional cases. It is because the welfare analysis leads to that conclusion…"

    Conclusions as to the approach that should apply to internal relocation cases

    Black LJ concludes that the approach set out in K v K, Re F (Relocation) [2012] and Re F [2015] should apply equally to internal relocation cases. In both external and internal relocation cases the welfare of the child is the court's paramount consideration. However, the outcome of that approach will depend on the facts of the individual case. Black LJ elaborated that:

    "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 county, 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."

    Proportionality

    Black LJ concludes that a consideration of the proportionality of any proposed interference with a party's article 8 rights is an essential part of the balancing exercise but it should not be undertaken separately. She states that it would be problematic to carry out an analysis of the welfare considerations and then cross-check whether such interference with the parties' Article 8 rights is proportionate. She explains at paragraph 61:

    "Mr Hale QC, for the father, originally suggested in argument that first the court has to carry out its comprehensive analysis of the welfare considerations and reach a conclusion, then that conclusion must be subjected to a cross-check by considering whether such interference with the Article 8 rights of the parties as it involves is proportionate. I have struggled with how that could be made to work in practical, real life, terms. If the cross-check produced the same result as the welfare analysis, it would be unproblematic but not very useful except as reassurance. If it produced a different result, that result could only have an impact on the outcome of the case if the provisions of section 1 of the Act were to be ignored. I am afraid that there also seems to me to be a real danger of the parties and the court getting so tangled up in the strands of the two separate exercises that they lose sight of what really matters for the child. All in all, therefore, in my view, matters should be approached as an analysis of the best interests of the child, whether the relocation is internal or external. Given the potential for the impact of the decision on the parents to affect the child as well, this necessarily involves a careful examination of the parents' wishes and their interests."

    Conclusion and additional comments from Vos LJ and Bodey J

    The Court of Appeal unanimously dismissed the father's appeal. Vos LJ agrees with Black LJ and reiterates the comments made by McFarlane LJ in Re F (International Relocation Cases) [2015] Civ 882 in relation to the application of the test being a holistic balancing exercise. He helpfully summarises as follows at paragraph 81:

    "I add a few words in an attempt to summarise the position that has now been reached.  As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child.  The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable.  The exercise is not a linear one.  It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child.  It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional."

    Vos LJ goes on to state that whilst the Payne factors may still be of some utility in some cases, they are no part of the applicable test or the applicable principles. If the judge finds them a useful guide to some of the factors that he should consider, he will be doing so only as part of the multi-factorial balancing exercise that is required.

    As summarised by Bodey J in paragraph 83, it is now clear that:

    a) 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.

    b) 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.

    c) 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.

News, published: 14/01/2016

Topics

See also


Published: 14/01/2016

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item