RELOCATION and the impact of Re C (Internal Relocation) [2015] EWCA Civ 1305

This case has afforded an important decision as well as being an excellent opportunity to review and consider the principles to be applied in cases of relocation and the different approaches to internal relocation and international relocation cases. This was carried out by Lady Justice Black in her judgment which carefully reviews all the authorities in relation to relocation whether it be in the United Kingdom or abroad.

It is not, however the complete answer, but it does provide some long awaited clarity and reinforces that the governing principle in relocation cases, both those within the UK (internal relocation) and those outside the UK (external relocation), is that it is the child’s welfare that is paramount.

It removes the idea that moving a child can only be prevented in exceptional cases and there is no rule that a Court, once having carried out a comprehensive analysis under the welfare guidelines (S.1 (1) and  (3) of the CA 1989), has a requirement to subject its conclusion to a cross-check by considering whether the consequent interference with the parties’ rights under the ECHR Article 8 was proportionate.  It provides that the statutory welfare check list is also applied as a yardstick in private law disputes also.

What is required is an overall, holistic welfare analysis of the rival plans of the parents with the welfare of the child in all the circumstances, without qualification, as the paramount consideration, and the wishes and interests of the parents and consequential effects play a part in this.

This particular case was an Appeal brought by the Father against an order which permitted the Mother and the child to move away from London to Cumbria.  The child was ten years old and whilst living with the Mother was spending two nights and alternate weekends with the Father.  The Order was also made despite a CAFCASS report which concluded it was not in the child’s best interests to move, and included the fact that the child wished to move to Cumbria and the Mother was very confident that she could maintain the strong relationship that the child had with the Father if she made the move.

One of the key factors, it appeared, was that if the Mother was forced to remain in London she would be deeply unhappy and it was considered that her feelings would in turn have a very serious and very harmful impact on the child.  It was further considered that if the Mother was not allowed to move this would cause a deterioration in the parent’s relationship and make the current arrangements more difficult to manage and work effectively.  Some weight was given to the child’s  expressed wish that she wanted to move.  It was not considered that it would be emotionally damaging to her, but rather that it would cause her upset if this move was not allowed.

The Father appealed on the basis that the trial judge had relied on the Payne v Payne  [2001] EWCA Civ 166, considerations in applying the law, and by treating the Mother as the primary carer.

Essential guidance was provided by the Court of Appeal in their dismissal of the Appeal:

1. The only principle to be applied in such cases was that the welfare of the child was paramount

2. The welfare principles which govern international relocation cases is the same to be used for internal relocation cases

3. Guidance as to the factors, such as the four point ‘discipline’  set out in Payne v Payne, in determining what is in the child’s best interests, while valuable in assisting the Judge in identifying the likely important factors, should not be applied rigidly.

4. There is no rule that the moving of a child within the United Kingdom can only be prevented in exceptional cases.

5. The Courts will be resistant to stopping parents from exercising their own choices about where they need to live, save unless it is clear that the child’s welfare requires this because the welfare analysis leads to that conclusion, and not because of any rule.

6. The analysis will also involve a careful examination of the wishes and interests of the parents, given the potential impact such a decision will have on their lives.

In this case the leading judgment is given by Black LJ, but Bodey J also provides a very useful summary on the proper approach to the issue of relocation thus:

• There is no difference in the basic approach between international and internal relocation, as the ultimate decision in both types of case falls on the welfare of the child
• In the context of evaluating and determining the welfare of the child the wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance
• A Judge is likely to find useful some or all of the considerations that are referred to in Payne v Payne, but this is not prescriptive but rather more of a checklist of the types of factors, which may or will need to be put into the balance, when determining a decision which will best serve the welfare of the child.  This is the same for either type of case, i.e. internal relocation or international relocation.

This case followed on from the Court’s decision in Re F (International Relocation Cases) [2015] EWCA Civ 882, which endorsed the view that a broad welfare-based evaluation of the pros and cons of a move should be judged from the child’s position and not that wholly of the parent.  Both of these cases avoid endorsing a presumption in favour of granting leave for a move to take place.

Where does that leave us……one can see that the broad welfare approach of Re C has perhaps a superficial attraction, ……who could disagree with the premise that a child’s welfare should determine disputes.  But on closer examination it may be seen as being a danger in undermining a single mother’s primary role of caring for the children.  It leaves open the question as to whether there is a need for reassurance that they can get on with their lives by moving home with the children if that is what they wish to do, for whatever reason, and Re C could be seen as weakening that reassurance.

The closest acknowledgement of this consideration can be seen in Re C at para 53 where Black LJ 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 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”.