Until recently, there was a lack of clarity in family law about the principles regulating the internal relocation of a child in the UK.
Inevitably, a tension always exists between the desire of one parent to relocate with a child to another part of the country, and the effect of such a move on the relationship of the child with the left-behind parent, particularly where the distance involved is considerable.
Identifying the correct approach to this scenario was problematic, as many of the Court of Appeal judgments appeared to conflict with one another; and, in most cases, the courts did not hear a full argument on the law and all the pre-existing authorities.
An understanding had developed that an “exceptionality test” existed, under which a primary carer would be entitled to relocate within the UK unless the circumstances were somehow “exceptional”. The applicable law and jurisprudence for internal and external relocation cases was thought, by many, to be somehow different.
These issues were directly addressed in Re C (A child) (Internal Relocation)  EWCA Civ 1305, a case involving internal relocation. One of the father’s arguments was that the first-instance judge had been wrong, in reaching his decision, to rely on one of the authorities on external relocation cases.
On 28 October 2015, the Court of Appeal heard an appeal by the father against an Order permitting the mother to move from London to Cumbria with their 10-year-old daughter, “C”.
The move was opposed by the father, on the basis that it would elevate the importance of the mother’s lifestyle decision, and would disrupt the “shared-care” arrangement that had been established after the parents (who were unmarried) had separated when C was 18 months’ old.
The mother’s reasons for wanting to relocate were to return to her roots in the North, to enhance her career, and for the lifestyle: country (rather than city) living, where she could afford to be financially independent.
Although C had expressed her desire to move to Cumbria, the child and family reporter’s recommendation was that, although the case was “very finely balanced”, she should not do so “at this time”
The recorder hearing the case disagreed, and granted the mother permission to relocate permanently with C to Cumbria, which he considered to be in C’s best interests. The International Centre for Family Law, Policy and Practice was given leave to intervene in the father’s appeal, on the basis of the potential ramifications of the Court of Appeal’s decision.
The mother’s argument on appeal was that, on a proper analysis of the jurisprudence, no “exceptionality test” had ever existed, and the courts had never intended for the law on internal and external relocation cases to be distinct.
The issues on appeal
The unresolved questions under review by the Court of Appeal on 28 October 2015 concerned:
- the key differences between internal and external relocation cases;
- understanding Re E  and its later interpretation;
- whether or not the “exceptionality test” is an impermissible gloss on the statutory exercise in internal relocation cases;
- following Re F , the interplay between the welfare checklist and proportionality under Article 8 of the European Convention on Human Rights; and
- the relevance of Payne .
What was the result?
The Court of Appeal, Black LJ leading, unanimously dismissed the father’s appeal. The judgment includes a detailed review of the authorities, and clarifies the principles to be applied in internal relocation cases in the UK.
The judgment confirms that “exceptionality” is not part of the relevant principles to be applied in internal relocation cases, and has aligned the law between internal and external relocation cases.
Why is the decision important?
Because very few cases on internal relocation had previously reached the Court of Appeal, this decision is of particular significance to legal professionals, who can now give clear advice to separated parents contemplating a relocation.
The three key principles in the judgment are that:
- The guiding principle in both types of case is the welfare of the child; in reaching its decision, the court is required to carry out a global, holistic evaluation of the circumstances of the case, including the proposals of both parents and the wishes of the child.
- There is no difference in the basic approach as between external and internal relocation.
- In any relocation case, whether domestic or international, a judge is likely to find helpful some or all of the considerations referred to in Payne, though not as a prescriptive blueprint; rather, and merely, as a checklist of the sort of factors that should or may be taken into account when determining what outcome would better serve the welfare of the child.
The Court of Appeal encouraged the courts to approach internal relocation cases in a positive fashion, “seeing if there is a way in which the move can be made to work”. The court acknowledged that the distance involved would always be an important factor, but that, in the final analysis, the welfare of the child will always be paramount.
Emma Hatley is a family and divorce partner at Stewarts Law