The Law on Internal Relocation

Any parent wanting to relocate with their child/children within the jurisdiction would be best advised to seek legal advice as these areas of law are fraught with difficulties.

In summary the following basic principles apply:

1. It is for the person proposing to relocate with their child to prove that the relocation proposed is in the child’s best interests on the balance of probabilities (the civil standard of proof).
2. If a parent relocates with their child without the permission of the other parent or the permission of the court, the court can and probably will order them to return to their previous location.

In the case of K v K [2011] EWCA Civ 793, the court clarified that the test in relation to relocation cases was the welfare of the child, which is the Court’s paramount consideration when determining any question with respect to a child’s upbringing.   The checklist of factors in section 1(3) applies, and factors for and against the relocation are put into the balance with a view to measuring the impact on the child.

Section 1 of the Children Act 1989 provides:

1   Welfare of the child.

(1) When a court determines any question with respect to—

(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.]

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

Therefore if the proposals of the parent with residence wishing to relocate are reasonable, they may carry great weight before the court.  The effect of a refusal of permission to relocate on the parent applying, and the new family of the child, can be important.  However, the effect of the proposed relocation on contact continuing between the child and the parent left behind is also very significant.  Relocation can mean greater travel times for contact with the other parent,  and therefore in maintaining a meaningful relationship with the parent left behind.

How does the court decide such cases?  The leading authority on internal relocation within the jurisdiction of England and Wales is Re C (Internal Relocation) [2015] EWCA Civ 1305.

The following points are highlighted:

1. a) The welfare principle s1(3) of the Children Act 1989 applies to applications to relocate under section 8 of the Children Act 1989 as well as applications to relocate under section 13 of the 1989 Act.
2. b) The courts 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 (para 53).
3. c) The principle of proportionality applies. The court would be unlikely to impose restrictions on a parent who wishes to move to the next village, or even the next town, but if the move is further afield and adversely affects the ability of the other parent to maintain regular contact with the child then different considerations apply.
4. d) The case of Payne v Payne [2001] EWCA Civ 166, is of limited relevance.

These principles were applied in the case of Re V (Appeal: Relocation) [2024] EWHC 2600 Fam.

1. The paramountcy principle is key: The child’s welfare is the paramount consideration.
2. The welfare checklist in s1(3) is applicable and should be considered by the Judge.
3. Cases should not be categorised on whether the pre-existing arrangements show a primary carer or shared care between parents.
4. Whilst the principles in Payne v Payne are useful, they are guidance as to factors to be taken into consideration and not a composite list.
5. It is important for the court to adopt a holistic approach to the welfare analysis and examine each proposal accordingly, without giving priority to relocating versus maintaining the status quo.
6. The Article 8 rights of the child and parents will be engaged and so too is the child’s right to maintain personal relations and direct contact with both parents on a regular basis under the UNCRC.
7. Relocation is fact sensitive.

So if you are considering relocation, you need to do your homework:  The child’s needs must be met.  The educational needs of the child means schools in the proposed location must be researched and a place for the child assured.  The child’s health needs requires a GP and a dentist in the proposed location who will accept the child and the family need to be found.  The child’s need for a stable home means accommodation in the medium term will be needed, not just a short term 6 month rental agreement.  The parent proposing to relocate must have a clear income source in the proposed location.  Last but not least, the proposed location must enable the child to maintain a relationship with the absent parent left behind, without the burden of travel falling on the child or the parent left behind.  Half way handover points should be identified, and costs ascertained.

Relocation is not easy. It can cause distress, uncertainty and anxiety.  Any parent proposing to relocate must be prepared to carry out extensive research in order to gather the evidence needed to show the proposed move is in the child’s best interests. If not, the court is likely to refuse permission.

For more information about our family law services please contact clerks@becket-chambers.co.uk