The 2015 case of Re: C addressed the issue of internal relocation of a child. That is where one parent wishes to move home within the UK taking the child with them where the other parent opposes this move. Prior to Re: C the Law in this area had been very unclear with decisions being made by the Courts which seemed to be contradictory to each other. A poignant question in this area is should relocation within the jurisdiction be treated the same as relocation to another Country. Re C addressed what Law should be used and how these decisions should be made.
The facts in the case of Re: C were not complex and in summary the mother of a 7 year old child wished to move from London to Cumbria. The father opposed this application as he resided in London and wanted to see his child on a regular basis. The Recorder permitted the mother to move and upon appeal from the father of this decision the Court of Appeal dismissed his application and allowed the mother to move. This decision was made in spite of the fact that CAFASS the Children and Family Court Advisory Service had set out that the move should not be permitted.
Re: C is an interesting case because it gives clarification to the Law in this area and sets out clearly what should be considered by the Court in cases which relate to relocation. Judge Black made it clear in Re: C that no distinction should be made between relocation within England and Wales to relocation to another jurisdiction. The Judge made it very clear in her judgment that the governing factor in any relocation case will be the welfare of the child. Child’s welfare is considered in Section 1 (3) of the Children Act 1999 and 7 criteria as set out as follows:
- The ascertainable wishes and feelings of the child concerned in light of their age and understanding;
- Child’s physical, emotional and educational needs;
- The likely effect on the child if the circumstances change as a result of the court’s decision;
- Child’s age, sex, background and any other characteristics which will be relevant to the Court’s decision;
- Any harm the child has suffered or maybe at risk of suffering;
- The capability of the children’s parents or any other person the Court find relevant at meeting the child’s needs;
- The powers available to the Court in the proceedings.
Prior to the case of Re: C the Court often referred to what was known as the “exceptionality test”. This test stating that a parent should be prevented from moving to another place within the UK only in exceptional circumstances. There was therefore a presumption that a move would usually be allowed. The exceptionality test was never referred to in international cases and this was highlighted in the case of Re: C.
In Re: C it was determined that the exceptionality test was not a principle in its own right. In making a decision about relocation within this jurisdiction an analysis of all matters should be made to determine what is in the child’s best interest with welfare as a paramount consideration. Removal of the presumption of an exceptionality test brought the Law of internal relocation in line with the Law in relation to external relocation.
It has been made clear that the Law in relation to internal relocation will be comparable in Law in line with external relocation. All factors will be considered in determining the child’s welfare and one such factor will be the right to family life under Article 8 of the European convention of Human Rights. It will be a balancing exercise for the Court to determine the correct decision to make in line with the child’s welfare. Consideration will need to take place as to whether it is proportionate to consider the parent’s right to family life under Article 8.
Law in relation to international relocation is largely governed by the case of Payne v Payne. In the case of Re: C Judge Black stated that Payne v Payne was helpful in determining whether a child should relocate either within this jurisdiction or to another but that this was not a prescriptive blue print. The factors as set out in Payne v Payne are as follows:
- Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. Is the mother’s application realistic, by which it means founded on practical proposals both by research and investigated. If the application fails either of these tests refusal will inevitably follow.
- If however the application passes these tests then there must be a careful appraisal of the father’s opposition. Is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the determent to him and his future relationship with the child or the application granted. To what extent would that be offset by extension of the child’s relationship with the maternal family and homeland.
- What would be the impact on the mother, either as the single parent or as a new wife, or of a refusal of her realistic proposal?
- The outcome of the second and third appraisal must then be brought into an overriding review of the child’s welfare of the paramount consideration, directed by the statutory checklist in so far as appropriate.
Whilst Payne v Payne will be considered in both internal and external relocation cases it will not be relevant to all or indeed the guiding force in such decisions.
Re: C provides an important update on both internal and external relocation cases as there is now less distinction between the two and some sense of alignment. This is a helpful decision in that Judge Black clearly gives consideration to the fact that in an ever shrinking world internal relocation can be just as significant or detrimental to a child as external relocation. It can of course be just as damaging to a non resident parent for a child to move to Wales for example or France for example.
The decision is perhaps well summarised at paragraph 53 where Lord Justice Black says 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 a child’s welfare requires it, but that is not because of a role that such a move can only be prevented in exceptional cases. It is because the welfare analysis leads to that conclusion.
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