RELOCATION! RELOCATION! RELOCATION!

This is part 1 of a 2 part series dealing with the factors a court must consider when deciding an application to relocate a child from their current home.

This note deals with relocation from one part of the United Kingdom to another part (commonly known as “internal relocation”).

How is the UK defined in these circumstances? 

The UK is defined for these purposes as being England, Wales and Scotland, together with Northern Ireland. It does not include the Isle of Man or the Channel Islands. 

Circumstances in which internal relocation cases can arise 

The need for internal relocation can arise in many circumstances. However, the most common situations are as follows: –

• The applicant has remarried or is in a new relationship and the new partner’s job or business has been relocated to another part of the UK.

• The applicant has been offered employment in another part of the UK and/or their role is being relocated to another part of the UK.

• The applicant wishes to return to the part of the country they grew up in to be closer to their friends and family following separation / divorce.

• The applicant wants to relocate with the child for lifestyle reasons, for example wishing to leave a town or city in favour of living in the countryside or on the coast.

Typically the applicant is the parent with whom the child lives. The situation where the child lives with both parents at two homes is dealt with below.

The Law, Terminology and Applications

It is important to note that if both parents agree to an internal relocation, there is no issue. However, often the impact of a significant geographical move upon the time spent with each parent is such that an agreement is hard to reach. It is often assumed that where agreement cannot be reached as to such a move, the parent remaining behind cannot do very much to prevent it. That is incorrect.

Statute Law does not place any requirements on a person if they wish to relocate a child from one part of the United Kingdom to another. Therefore there is nothing on the Statute book to prevent someone moving from London to Glasgow with the child for example. However, case law provides guidance about this area of the law and the correct approach to take to internal relocation disputes.

Terminology and Orders

It is important to note that concepts of Residence and Contact (and the resulting Orders) are no longer available. Just as concepts of Custody and Access were removed in 1989 in favour of Residence and Contact, recent changes in the law have introduced the concepts of with whom a child shall “live” and with whom a child shall “spend time with”. These are now to be enshrined in Child Arrangement Orders (“CAO”) where such an order is necessary.

Where there is a CAO setting out when and with whom a child shall live, that child cannot be removed from the UK without the court’s permission or consent of those who have parental responsibility save for a period of up to a month where consent is not required for the person named in the CAO.

Applications

A parent wishing to apply for permission to move within the UK should make their application for a Specific Issue Order under Section 8 of the Children Act 1989. The parent who wishes to stop an internal relocation must apply for a Prohibited Steps Order under Section 8 of the Children Act 1989. There is judicial authority dissuading parents from trying to attach conditions to a CAO that is in place to achieve the permission or prohibition of an internal relocation.

The considerations a court must make when deciding for or against internal relocation are not the same as those in an overseas relocation case. It is perhaps curious why that should be the case given that relocation to, say, Brittany in France could in real terms be closer geographically and in terms of travel time to the remaining parent than, say, an internal relocation from Brighton to Aberdeen.

Notwithstanding the above, the court will still need to base its decision in an internal relocation matter upon the Paramountcy Principle; that the child’s welfare is to be the principle factor in any decision. The relevant factors contained within the welfare check list set out at section 1 (1) Children Act 1989 will apply.

Case Law

Re: E [1997] EWCA Civ 3084 is often cited as authority for an applicant to be allowed to relocate a child within the UK unless there are exceptional circumstances to prohibit it. The exceptionality test has developed and been followed since.

In Re: H [2001] EWCA civ 1338 a father who was named in a CAO (in today’s language) as being the parent with whom the children lived was prevented from relocating the children to Northern Ireland because it was shown that the relocation would have a devastating impact upon the children. This is essentially due to the children not wishing to go and being of an age where they could clearly express that.

The mother in ETS v BT [2009] EWCA civ 20 had been refused permission to relocate from North London to Somerset. There was a CAO in place which named both parents as being the people with whom the child in question lived. The mother had previously applied to relocate the child to Israel but that application was refused as the judge found that her motivation for making the application was to undermine the shared living arrangements and the child’s relationship with her father. The mother also had a history of regularly moving around the country. As such, the proposed internal relocation was not considered to be in the child’s best interests and it failed via application of the welfare checklist. The Court of Appeal made it clear that the mother’s desire to undermine the shared living CAO by continually moving around the country determined that her application for the internal relocation had to fail.

In Re F[2010] EWCA civ 1428 the mother wished to relocate with her 4 children to the Orkney Islands. The journey for the children to spend time with their father and the difficulty in maintaining their relationship with him (together with the children’s step-brother) was judged to be too big a step and was not in the interests of the children. The child who suffered from Dyspraxia and mild Autistic Disorder required stability, routine and paternal contact and these factors were given particular weight. 

Re: K (children)[2011] EWCA Civ 793 although dealing with international relocation this case reaffirmed the point that decisions in relocation cases are to be based upon the welfare of the child involved. Further, Thorpe LJ stated in passing that it was his view that a parent named in a CAO as the person with whom the child lives can plan and effect an internal relocation unless it can be shown that the application for the Prohibited Steps Order by the other parent was such that it was exceptionally likely that the relocation would be damaging to the welfare of the child.

Key principles that determine a relocation application

It is clear from the above that the parent named on a CAO with whom the child lives does not necessarily automatically allow for an internal relocation. Similarly a CAO naming both parents as being with whom the child lives in a shared care arrangement does not necessarily prevent an internal relocation. The basic principle is that a parent can live where they like in the UK with the children that live with them. However, in exceptional circumstances, it is possible for a court to make a Prohibited Steps Order to prevent a proposed relocation of a child from one part of the UK to the other.

If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or contact@jonesnickolds.co.uk