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Private children: same difference?

13th June 2022 - Sacha Lee

Katherine Res Pritchard and Sacha Lee look at internal relocation and the approach taken by the courts following Re C. This article was first published by the Family Law Journal (Legalease).

Internal relocation refers to a move by one parent with a child from one part of the UK to another. It is not unusual in the years post-separation and/or divorce for one parent to decide that they want to move to a different part of the country and potentially significantly further away from the area where the other parent lives.

This may occur for a number of reasons. They may wish to move closer to where their parents live, or a job opportunity may have come up which is in a different area of the country, or they may have a new partner who is from a different area, or has a job offer in a new area. The reasons for wanting to move are many and varied, and each case will be different.

Is permission required?

In circumstances where there is no child arrangements order in place that includes a condition as to where the child is to live (which will be rare, per Re E (Residence: Imposition of Condition) [1997]), the parent wishing to move should still seek the agreement of the other parent to do so.

If for example the move were to entail a change in school for the child (ie a decision which falls within the umbrella of parental responsibility), all those holding parental responsibility (usually both biological parents but may also include step-parents or LGBTQ+ couples to whom the court has conferred parental responsibility) should be consulted in relation to that change. However, if the move is not agreed, which it frequently is not, then the parent wishing to move may wish in any event to apply to the court for a specific issue order for permission to internally relocate with the child. Or, in the alternative, the left-behind parent, if there is a risk that the other parent may move with the child without their agreement, will need to consider whether to apply for a prohibited steps order to seek to prevent the move. However, where there is a child arrangements order in place that names the person who seeks to relocate as the person with whom the child is to live, as noted in Re C (Internal Relocation) [2015] and considered below, there is no equivalent provision to that set out in s13, Children Act 1989 (ChA 1989), which requires the written consent of every person who has parental responsibility for the child, or the leave of the court, for an external, ie international, relocation.    

Overview of the law

Historically, the courts maintained separate approaches to external relocation (ie international) and internal relocation cases.

Previously, the principle of exceptionality applied to the imposition of restrictions on the capacity of the parent with primary care to choose where they live with the child within the UK. In other words, the parent with primary care would be likely to be permitted to move within the UK unless there were exceptional reasons for the court to refuse. This was because the definition of a child arrangements order in s8(1), ChA 1989 refers only to:

  • with whom a child is to live, spend time or otherwise have contact; and
  • when a child is to live, spend time or otherwise have contact with any person  

ie the statue does not specifically set out parameters for the location at which the child must reside.

If there is a child arrangements order in place, the court may impose a restriction as to where the child must live pursuant to s11(7), ChA 1989. However, Butler-Sloss LJ (as she then was) stated in Re E (at p642) that this was a power to be exercised sparingly and only in exceptional cases, from which the principle of exceptionality derives.

Therefore, it had previously been the idea (and indeed the reality) that internal relocation was more likely to be permitted by the court as exceptionality is a high threshold to overcome. [PULL QUOTE] Prior to Re C, in practice, internal relocation cases had a reputation for being difficult to contest, particularly where the distances involved were short [END PULL QUOTE].

Indeed, Thorpe LJ considered the issues in Re H (Children) [2001] and asked what the rationalisation for freer movement of the primary carer within the UK was (para 20). This was a reminder that internal relocation was more likely to be granted compared to external relocation, however it also demonstrated that the time was approaching for a change in approach, with Thorpe LJ querying why the law stood as it did.

That change took place in the key case of Re C, in which Black LJ commenced her judgment by undertaking a thorough analysis of the reasons why this had perhaps been the case.

The first was that s13(1), ChA 1989 states that where a live with child arrangements order is in place, no person may remove a child from the UK (other than for short periods) without either the written consent of every person who has parental responsibility or the leave of the court. However, there is no such provision covering internal relocations. This could have given rise to a logical difference in approach. However, Black LJ pointed out that as s13, ChA 1989 only applies where a child arrangements order is in place and not all external relocation cases involved such an order, by the same logic, there should have been a different approach for external relocations where there was a child arrangements order, external relocations where there wasnt and then another for internal relocations, yet there was not. As Black LJ said (at para 20):

...section 13 is not a universal component in external relocation cases.  It is the existence of a child arrangements order that brings into play the prohibition against external relocation in section 13. However, parents do not always need a child arrangements order to regulate their care of the child and courts are directed by section 1(5) of the Act not to make an order unless doing so would be better for the child than making no order at all. It follows that there are, in theory, two types of removal from the UK: those where there is a child arrangements order and removal is restricted by section 13, and those where there is no child arrangements order and so no automatic restriction. In the latter case, the move will be regulated, if at all, by means of an order under section 8. I am not sure whether any of the external relocation cases acknowledge this dichotomy. If they do, the acknowledgment has no practical implications because all external relocation cases are approached in exactly the same way. This appears to suggest that the outcome does not depend in any way upon section 13. 

The second point was that an external relocation perhaps had different implications than an internal one. This was something which Thorpe LJ had wrestled with in Re H, where he said (at para 20):

Within the same sovereignty there will be the same system of laws, with the same rights of the citizen, rights for instance to education, health care and statutory benefits. Equally, it can be said that within Europe, whilst perhaps the burden on the applicant may be greater, it is equally mitigated by the fact that within the Community there is the same fundamental approach to social issues and a real endeavour to achieve harmonisation, obviously in social policy but also in family justice. If, moving to the third alternative, the application is for relocation outside the European region, the necessary adjustment may be rationalised on the basis that the social and other circumstances involved in relocation may require much greater adjustment for the children; alternatively, that the obstacles to contact may be enhanced. 

However, Black LJ queried the rationale behind this suggestion by stating (at para 23) that:

... [Thorpe LJ] referred to the same sovereignty within the UK meaning the same system of laws, but the UK does not have only one system of laws. Furthermore, he divided up his consideration into three categories, UK, the European Union and the rest of the globe, but there are only two categories of relocation, within the UK and outside it. 

The third reason was the potential comparative enforceability internally versus externally. The idea Black LJ was querying is whether enforcing orders internationally can be more challenging compared to within the UK, so potentially a reason for the detailed analysis of the childs best interests for an external relocation could have been because the stakes were higher in terms of enforceability if the move did not go to plan.

However, she dismissed this (at para 24) because the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention) may be utilised to enforce orders made outside the UK in respect of external relocations. The 1996 Hague Convention aims to improve the protection of children in international situations and permits additional measures to be taken to protect children, even if the child is usually resident in another contracting state. It does so by governing the law on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children. Post-Brexit and the revocation of Brussels II bis (Council Regulation (EC) No 2201/2003), it is also the key piece of legislation for the enforcement of private children law orders internationally.

Using the 1996 Hague Convention thus provides security of position in those cases. Therefore, while it may be a consideration for external relocation cases, it does not justify a separate regime for internal and external relocation cases and negates any need for one.

The fourth reason is the idea of different distances involved in internal versus external relocation cases. However, Black LJ also gave this argument short shrift, concluding (at para 24) that, for example, Re F (Children) [2010], which concerned a move from the North-East of England to one of the Orkney Islands ...amply demonstrates that relocation within the UK can create just as large a geographical and logistical barrier between the child and his or her other parent as a relocation abroad.

Black LJ therefore concluded (with agreement from her fellow judges) that there was no justification for separate approaches to internal and external relocation cases. She also concluded (at para 26) that as in external relocation cases:

The only principle to be applied when determining an application to remove a child permanently from the UK is that the welfare of the child is paramount. Guidance from the Court of Appeal as to factors to be weighed in the search for what is in the best interests of the child, such as that in Payne v Payne ... is valuable in so far as it helps judges to identify factors which are likely to be of importance but it is not to be applied rigidly. 

What conclusions can be drawn from Re C?

Re C set a new standard for internal relocation cases, whereby the welfare of the child was paramount, assessed by way of the welfare checklist set out at s1(3), ChA 1989, and the considerations set out in Payne weighed in the balance of making this holistic assessment.

The Payne factors are:

  • the welfare of the child is always paramount;
  • there is no presumption created by s13(1)(b), ChA 1989 in favour of the applicant parent;
  • the reasonable proposals of the parent with a residence order wishing to live abroad 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 on the applicant parent and any 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 their family is very important; and
  • the opportunity for continuing contact between the child and the parent left behind may be very significant.

The impact of Payne cannot be underestimated. Given the nuances involved in such situation, the court takes a holistic approach to such an application. It places a heavier burden on the parent wishing to relocate than was the case previously, to demonstrate that the move is in the childs best interests, rather than it should be permissible on the grounds of having been granted a residence order (now replaced by lives with/spends time with orders) for example.

Furthermore, the court has made it very clear that there is no black and white answer to be given in cases such as these. Each case will hinge upon its own facts and require an in-depth and holistic assessment of the evidence provided both in support of the proposed move and against it.

Subsequent case law

There are few reported judgments since the seminal case of Re C from which to draw concrete conclusions about growing trends one way or the other as to whether internal relocations are more or less likely to be granted.

In Re R (A Child) [2016], the mother had unilaterally removed the child to the north-east at the outset of proceedings. The father applied for the childs return to Kent. He advanced an argument, based upon the decision of the court in Re C, that the court should take the same approach to the case as would be taken where a child is unilaterally removed abroad, ie to restore the status quo by returning the child home forthwith and allowing the court in Kent to determine the issues between the parties.

However, the district judge at first instance was not persuaded by this argument and made his decision by applying the welfare principle in s1(1), ChA 1989,  having regard to the welfare checklist in s1(3) in the usual way. That decision was upheld on appeal and the Court of Appeal held that although Re C established that internal relocations and external relocations should be approached the same way, internal or external (ie international) abductions should not be treated in the same way. However, Re R served to reinforce the principle set down in Re C, namely that the childs welfare is paramount.

Re C changed the goalposts slightly from what they had been prior to 2015, when there was a presumption that the resident parent could live wherever they chose within the UK. Now, as for external relocations, the childs welfare must be considered very carefully, using the welfare checklist at s1(3), ChA 1989 and using the Payne factors to assist. This exercise does not therefore guarantee that such a move will be deemed in the childs best interests and consequently it may be refused.

Indeed, more recently, in F v G [2021] the mother had moved with the children out of London to the countryside for the Covid-19 lockdown, with the consent of the father. However, when she wished to make the move permanent, the father did not agree. HHJ Lloyd-Jones reiterated that ...the paramountcy of the childs welfare is no different when making an internal relocation decision than any other decision for a child (para 48). In a detailed judgment in which she applied the welfare checklist in detail to the childrens individual circumstances, she made an order that reflected arrangements already partially put in place by the parents that provided for one child to remain living with the father and attending school in London and the other child with the mother in the countryside, with weekend and holiday contact to ensure that the children spent as much time with each other as possible.

Parents can be placed in a difficult position, as ex-partners yet co-parents navigating a new normal can be very challenging, particularly where one or both parents move on with new partners or have non-local family with whom they are close or are presented with a job opportunity that is too good to turn down.

Conclusion

Reflecting on the case law set out above, it could be said that the detailed assessment the court has been tasked to undertake in cases of internal relocation may make it less likely for internal relocation to be permitted.

The parent seeking to move will need to put together very carefully curated proposals, applying the welfare checklist to their case and addressing the Payne factors, which set out how contact disruption with the other parent will be minimised, how disruption to the child will be minimised and why it would be in the childs best interests to move, taking a global view of the situation. The moving parent is, in effect, seeking to make an adjustment to the status quo, which must be proved to be more beneficial to the child, than maintaining it.

This is a shift from the previous presumption that the resident parent could live where they chose within the UK. The court needs to be persuaded that the move is in the childs best interests, which can be difficult for a parent to separate from their own desires and feelings after the end of their relationship with the other parent. For example, if a parent would like to relocate to be closer to their parents, or for work, or with their new partner, or even due to allegations about the other parent, these are not necessarily child-focused reasons. While the court will consider the impact on the resident parent if the move is refused (and indeed on the other parent if the move is permitted), this is not determinative.

However, the enduring impact of Re C is that the court overtly places the welfare of the child at the heart of its decision. No longer is it the case that a non-resident parent  will be less likely to be able to oppose internal relocation, or that resident parents  can move around more freely. Following the 2014 reforms to the way the court determines child arrangements (ie now by way of child arrangements orders and lives with/spends time with orders), the court has systematically aimed to reduce any negative distinction between parents and the importance of the role they play in their childs life. Re C in the arena of internal relocation is a symbolic judgment that reflects this progress.

Any decision on internal relocation will inevitably create a polarising reaction in the parties:  one will be disappointed and one will be overjoyed and proceedings tend to be hotly contested. However, Re C vitally reinforces that the courts decision is based purely on what is in the best interests of the child, assessed with a global view and holistically, resulting in a decision which is tailored to the individual circumstances of the case and all of its nuances.

Cases

  • Re E (Residence: Imposition of Condition) [1997] 2 FLR 638
  • Re H (Children) [2001] EWCA Civ 1338
  • Re C (Internal Relocation) [2015] EWCA Civ 1305
  • Re F (Children) [2010] EWCA Civ 1428
  • Payne v Payne [2001] EWCA Civ 166
  • Re R (A Child) [2016] EWCA Civ 1016
  • F v G [2021] EWFC B12
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