Jacob Gifford Head | Removal and Relocation of Children

Introduction

The question of where a child should live is one of the most difficult for the Court to decide in any private law children case. It becomes considerably more difficult when one parent proposes that the child is permanently moved from the area where (s)he currently resides to somewhere else, either in the U.K. or abroad. With few exceptions, the ability of the non-resident parent to contact the child will decrease and there may often be genuine concern that all regular contact with the non-resident parent will cease. This paper considers recent developments in the case law of this area, with the intention of highlighting significant and interesting cases which may be of use in practice.

Definitions & Terminology

It is reasonably conventional to refer to cases where the child is being moved within the U.K. as “relocation” whilst those where the child is being moved to another country as “removal”. Since the family court is rather fond of jargon, the expression “leave to remove” is also quite common. It is sometimes abbreviated as “LTR”, “TLTR” or ”PLTR”. The second and third expressions standing for “temporary” or “permanent” leave to remove.

Although England and Wales is, of course, a separate legal jurisdiction from Northern Ireland and Scotland, no distinction has been drawn by the courts or Parliament between relocation within the jurisdiction and relocation to another part of the U.K. Indeed, sometimes orders refer to the “the jurisdiction” when they really mean “the U.K.” Equally, the removal authorities do not distinguish between removal to an EU and to a non-EU country, nor do they substantively differ depending on whether the country which the parent proposes to move to is a party to one of the major child-abduction treaties. For this reason, this paper simply divides the authorities into two categories: relocation and removal.

Finally, it is worth noting that much of the case law in this area pre-dates the Children and Families Act 2014 which changed the approach and terminology of the court. Before 2014, courts generally made orders for “residence” (formerly “custody”) and “contact” (“access”) whereas, today, similar principles are expressed in more flexible and neutral language under “child arrangements orders” specifying with whom a child “lives with” and “spends time with”.

Removal Cases

Statutory Framework

Parliament has enacted relatively little legislation which is specifically relevant to applications for removal. The legislation which exists is primarily aimed at avoiding child abduction by setting out when it is unlawful or illegal to remove a child. However, by setting out what is not permitted Parliament has, by extension, set out the circumstances under which it is not necessary to seek permission from the court because appropriate consent is available.

Consent

Under s.1 Child Abduction Act 1984, it is an offence to remove a child from the jurisdiction without leave of the court, unless consent is granted by a number of the child’s relatives. This always includes the mother and extends to the father if he has Parental Responsibility (usually by being married to the mother or named on the child’s birth certificate), together with a number of other less-commonly-encountered categories of people. It is notable that there is no requirement for the consent to be in writing. That said, with the authorities being more alive to the dangers of abduction before, it is often sensible to carry written consent when travelling with children alone.

1 Offence of abduction of child by parent, etc.

1. (1) Subject to subsections (5) and (8) below, a person connected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.
2. [...]
3. (3) In this section ’the appropriate consent’, in relation to a child, means—
   1. (a) the consent of each of the following—
      1. (i) The child’s mother;
      2. (ii) the child’s father, if he has parental responsibility for him;
      3. (iii) any guardian of the child;
      4. (iiia) any special guardian of the child;
      5. (iv) any person named in a child arrangements order as a person with whom the child is to live;
      6. (v) any person who has custody of the child; or
   2. (b) the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989; or
   3. (c) if any person has custody of the child, the leave of the court which awarded custody to him.
4. [...]

Once a Family Court has made a child arrangements order with a “live with” provision (which is the first order that is usually made in Children Act proceedings), the requirement for consent becomes stricter. Under s.13(1) Children Act 1989 consent of every person who has parental responsibility is required and that consent must then be in writing.

13 Change of child’s name or removal from jurisdiction.

1. (1) Where a child arrangements order to which subsection (4) applies is in force with respect to a child, no person may—
2. (a) cause the child to be known by a new surname; or
3. (b) remove him from the United Kingdom; without either the written consent of every person who has parental responsibility for the child or the leave of the court.
4. (2) Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month, by a person named in the child arrangements order as a person with whom the child is to live.
5. (3) In making a child arrangements order to which subsection (4) applies, the court may grant the leave required by subsection (1)(b), either generally or for specified purposes.
6. (4) This subsection applies to a child arrangements order if the arrangements regulated by the order consist of, or include, arrangements which relate to either or both of the following—
7. (a) with whom the child concerned is to live, and
8. (b) when the child is to live with any person.

Whilst this article is primarily concerned with permanent removal and relocation, the exception in s.13(2) is an important one which is worth highlighting since it covers most holidays, school trips and other occasions when a parent might wish to temporarily leave the jurisdiction with the child.

Procedure

In considering what procedure to use, it may be helpful to start with what powers a parent is asking the court to invoke.

Powers of the Court

In cases where no child arrangements order is in force, the court’s powers are created by s.10(1) Children Act 1989 which provides that, “in any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child”. A “section 8” order is defined by s.8(1) and s.8(2) as one of the following:

1. “child arrangements order” mean[ing] an order regulating arrangements relating to any of the following—
2. (a) with whom a child is to live, spend time or otherwise have contact, and
3. (b) when a child is to live, spend time or otherwise have contact with any person;
4. “a prohibited steps order” mean[ing] an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court; and
5. “a specific issue order” mean[ing] an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

Generally speaking, an application for permission to remove is treated as an application for a specific issue order (inevitably abbreviated as a “SIO”) and an application to stop someone going as an application for a prohibited steps order (“PSO”), although sometimes they are phrased as applications for an order for a child arrangements order or even as a freestanding order under for leave under s.13(1)(b).

Applying to Remove

The law has placed increased emphasis on attempting parties to resolve disputes outside court in recent years. As a result, before applying for an order, it is usually a requirement to attend a “Mediation Information & Assessment Meeting or MIAM with the hope that any dispute can be resolved outside court. Giving full information about MIAMs, mediation and other ways of resolving disputes without litigation is outside the scope of this article but the Family Mediation Council is a helpful place to start.

If mediation fails or is not possible due to an exception being present (e.g. domestic violence), applications are most commonly made using form C100 to start proceedings. This can either be completed and submitted online or filled in, printed and sent off to the court. Most commonly parents wishing to remove tick the box marked “Specific Issue Order” on the first page and then say something like “I seek permission to remove my children permanently from the UK to live with me in France” in the box below.

In the past, it was more common for applications to be expressed as being for leave under s.13(1)(b), in which case a different form, the C1, is used (together with FM1 which certifies the MIAM requirements have been met). I would suggest taking legal advice if you are thinking about using this procedure today.

If proceedings are already in existence, the application should be made by form C2, again with the form FM1 attached.

There are slightly complex rules about who is entitled to make these applications and it may be necessary to take advice about them if you not the child’s mother or the father with parental responsibility. The respondents (i.e. the people served with the application and who have a right to object to it) are always:

“Every person whom the applicant believes to have parental responsibility for the child; where the child is the subject of a care order, every person whom the applicant believes to have had parental responsibility immediately prior to the making of the care order; in the case of an application to extend, vary or discharge an order, the parties to the proceedings leading to the order which it is sought to have extended, varied or discharged; in the case of specified proceedings, the child”

Applying to Prohibit Removal

If a parent believes removal is likely and wishes to oppose it, he or she can make a pre-emptive application for a prohibited steps order prohibiting such removal under s.8. This procedure was used without criticism (or comment) in Re R [2011] EWCA Civ 558 and is reasonably common. The application can be made both urgently (i.e. where quick consideration by a Judge is sought) and also without notice (sometimes called “ex parte”) to the parent against whom the order is sought.

When considering whether to make an order either urgently or without notice the court is required to look at the factors under paragraph 12 of Family Procedure Rules Practice Direction 12B. These include, in the case of urgency these factors under paragraph 12.1 (amongst others):

1. (1) There is a risk to the life, liberty, or the physical safety of the prospective applicant or his or her family, or his or her home;
2. (2) Any delay caused by attending a MIAM would cause:
1. (A) A risk of harm to the child;
2. (B) A risk of unlawful removal of a child from the United Kingdom or a risk of unlawful retention of a child who is currently outside England and Wales;
3. (C) A significant risk of a miscarriage of justice; and
3. (4) Unreasonable hardship to the prospective applicant;

The requirements for a without notice hearing are somewhat stricter. They rules say, at 12.3:

Without Notice Orders should be made only exceptionally, and where –

1. (1) If the applicant were to give notice to the respondent(s) this would enable the respondent(s) to take steps to defeat the purpose of the injunction; cases where the application is brought without notice in order to conceal the step from the respondent(s) are very rare indeed; or
2. (2) The case is one of exceptional urgency; that is to say, that there has been literally no time to give notice (either by telephone, text or e-mail or otherwise) before the injunction is required to prevent the threatened wrongful act; or
3. (3) If the applicant gives notice to the respondent(s), this would be likely to expose the applicant or relevant child to unnecessary risk of physical or emotional harm.

There are also a number of procedural safeguards which the court is required to consider under paragraph 12.4.

How the court approaches these cases & case law

In England and Wales, the appeal courts are capable of making binding decisions as to how the law should be interpreted. In the family court, this often means deciding what questions judges should ask themselves and how statutes should be interpreted. These cases are often called authorities and it is important to understand these to understand how the courts will deal with any given application.

A feature of removal applications is that whilst the law was changed by the courts in 2015, the “old law” still seems to be in the background of the thinking of many judges. I therefore think it is helpful to go through it chronologically even if, ideally, this would not be necessary.

Old Cases Pre-Re F

Before 2015, the main authority governing the law relating to removal was Payne v. Payne [2001] EWCA Civ 166; [2001] Fam 473. It build on the earlier (pre-Children Act 1989 and pre-Human Rights Act 1998) authority of Poel v. Poel [1970] 1 WLR 1469 which can, perhaps, be regarded as the starting point for any discussion of the law.

Poel v. Poel

In Poel v. Poel it was held by Winn LJ at 1471 that the primary concern of the courts in removal cases was the welfare of the child, something that would be repeated in every authority thereafter. However, he thought that there should be a presumption in favour of the removal when the child lived with the applicant (under what was called a custody order in those days) those arrangements were working well:

“It seems to me that in approaching this very finely balanced problem — which involves a difficult and a sad decision — the court should have regard primarily to the welfare of the child. […] Further, it is to be regarded, I think, as a very dominant factor in such a dispute that there has been an order (which in fact was not resisted) for custody in favour of the one parent, in this case the mother, and that there is every indication that the custody thus ordered has been working satisfactorily in every respect.”

A recurrent theme of the case law after Poel v. Poel is a tension between whether the court should solely be concerned with asking itself what is in the best interests of the welfare of the child or whether more precise tests could be applied or presumptions made.

Payne v. Payne

In Payne v. Payne, the Court considered the application of the Human Rights Act 1998 to the existing law on removal and expanded the test of Poel v. Poel.

The judgment of Thorpe LJ who set out a four-fold test at 488B or [40] is often cited as being the primary decision or ratio of the case:

“However, there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption, then there would be an obvious risk of the breach of the respondent’s rights not only under article 8 but also his rights under article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:

“(a) Pose the question: 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? Then ask, is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.

“(b) 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 detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

“(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

“(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate.

“In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological wellbeing of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”

However, the “summary” of Butler-Sloss P (as she then was) at [85] and 500 is also worth considering on the basis that it emphasises the importance of considering the potential effect on the child of the lack of contact with the parent left behind:

“In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. […]

“(a) The welfare of the child is always paramount.

“(b) There is no presumption created by section 13(1)(b) of the Children Act 1989 in favour of the applicant parent.

“(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

“(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

“(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

“(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

“(g) The opportunity for continuing contact between the child and the parent le behind may be very significant.

“All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. […]”

From Payne v. Payne to Re F

The principles and guidelines in Payne v. Payne were regularly challenged after 2001 but with, for the first decade at least, only limited success. For example, in Re G [2007] EWCA Civ 1497; [2008] 1 FLR 1587, a skeleton argument was advanced by Nicolas Mostyn QC (a future High Court Judge) that Payne v. Payne “was now outdated and heavily criticised, both in this jurisdiction and beyond, by judges, practitioners and academics” and should therefore be reconsidered. Furthermore, it was argued that it was regularly misunderstood by members of the judiciary. Both such arguments were rejected by Thorpe LJ at [14] and [18] who emphasised that it was difficult for a reconsideration of Payne v. Payne to take place in the Court of Appeal as opposed to the House of Lords (the then Supreme Court in England) or Parliament.

Another attack failed in Re W [2011] EWCA Civ 345; [2011] 2 FLR 409 when Wall P extensively discussed the decision in Payne v. Payne and concluded that:

“[23]. I do not propose to embark upon my own assessment of the criteria to be taken into account when deciding a relocation application. All that I am prepared to state at this stage is that the decision falls to be taken on what the court perceives to be in the best interests of the children concerned. Their welfare is our paramount consideration. The court must also apply the criteria and guidance set out in Payne v. Payne.”

And then at [129]:

“It further occurs to me that […] unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 (paramountcy of welfare), relocation cases will remain fact specific, the subject of discretionary decisions, and governed by Pane v. Payne. The judge in the instant case rightly recognised that he had to follow Payne v. Payne. In my judgement, however, he failed to do so.”

However, a shift in emphasis is apparent by a second judgment in 2011, K v. K [2011] EWCA Civ 793; [2011] 3 FCR 111 where it was held, at [39], that the only principle to be extracted from Payne v. Payne is that the welfare test is paramount. The other factors are simply guidance.

As a result, in Re F [2012] EWCA Civ 1364, [2013] 1 FLR 645, when the Court of Appeal was invited to conclude that a first instance judge erred by applying the Payne v. Payne criteria to a case where the application for relocation was not made by the sole carer of the child, Munby LJ, giving the judgment of the court held, at [48-49], that as long as Payne v. Payne was used only for guidance and the welfare test was also applied there could be no error:

“[The trial judge] was entitled, he said, to “look at” what he called “the Payne guidelines.” Now what in fact did he look at? The answer is clear: what he looked at, and all he looked at, was Thorpe LJ’s discipline as set out in Payne paragraph [40]. He did not, for example, refer to Poel or to what Thorpe LJ had said in Payne at paragraphs [26], [32] and [41]. Having concluded his consideration of the “discipline”, he then turned, as we have seen, to an investigation and evaluation of P’s best interests having regard to the “welfare checklist’ [i.e. s.1(1) Children Act 1989]. Finally, and in the light of that, he came to his overall conclusion.

“In my judgment there was no error of law.”

Re F; DF v. N B-F: A Change of Approach

It took until 2015 for the frequently-made criticism of Payne v. Payne to be accepted by the Court of Appeal in a judgment given by Ryder LJ in Re F; DF v. M B-F [2015] EWCA Civ 882; [2016] 2 F.C.R. 368; [2016] Fam. Law 565.

Having quoted paragraph [40] of Thorpe LJ’s judgment in Payne v. Payne, Ryder LJ noted, at [17] that:

“The ratio of the decision in Payne was more nuanced in the sense that the questions were always intended to be part of a welfare analysis and were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived and the best intentions of the court were lost in translation.”

He then continued:

“Furthermore, in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise, the absence of any emphasis on the child’s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it […]”

Before concluding at [30] that:

“Where there is more than one proposal before the court, a welfare analysis of each proposal will be necessary. That is neither a new approach nor is it an option. A welfare analysis is a requirement in any decision about a child’s upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absent or ‘left behind’ parent) from being sidelined in a linear analysis. Not only is it necessary to consider both parents’ proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse.”

As with Payne v. Payne, the concurring judgments are also helpful, particularly that of Christopher Clarke LJ at [43]:

“Reduced to the barest essentials the guiding principles and precepts are as follows. The welfare of the child is the paramount consideration. That is the only true principle. In deciding, in a case such as this, where a child should be located it is necessary for the court to consider the proposals both of the father and of the mother in the light of, inter alia, the welfare check list (whether because it is compulsorily applicable or because it is a useful guide) and having regard to the interests of the parties, and most important of all, of the child. Such consideration needs to be directed at each of the proposals taken as a whole. The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.”

It is very likely that this judgment will remain the leading authority on removal for some time, as happened with Payne v. Payne and Poel v. Poel before it.

The “welfare check list” mentioned by Christopher Clarke LJ is a reference to s.1(3) Children Act 1989. This provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration and that should be determined by having regard, in particular, to:

1. (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
2. (b) his physical, emotional and educational needs;
3. (c) the likely effect on him of any change in his circumstances;
4. (d) his age, sex, background and any characteristics of his which the court considers relevant;
5. (e) any harm which he has suffered or is at risk of suffering;
6. (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;
7. (g) the range of powers available to the court under this Act in the proceedings in question.

Additionally, the court is reminded, at s.1(2) that 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 and, at s.1(2A), (assuming the application is for a PSO or SIO) it must presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare. The s.1(2A) criteria is often less determinative than might be expect, especially since, s.1(2b) provides that “‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child's time.”

Other Aspects of Removal

Whilst Re F, Payne v. Payne and Poel v. Poel are the fundamental authorities on the general approach to applications for removal, the Court of Appeal has also provided guidance on specific issues that sometimes arise.

Almost Shared Care is not a Bar to Removal: Re G

In Re G [2007] EWCA Civ 1497; [2008] 1 FLR 1587, it was held that a child could be removed to Germany, despite there being (under the pre-2014 terminology) a shared residence order in place which granted 41% contact time to the father. Despite it being a “finely balanced case”, it was held that the Court of Appeal could not interfere in the decision of the judge to allow removal on a Payne-based criteria.

Siblings’ Welfare Must be Considered Individually: LSA v. RBS, Re S

In LSA v. RBS [2011] EWCA Civ 454; [2011] 2 FLR 678 it was held that when considering an application for leave to remove siblings, the welfare of each child must be considered separately. Where the mother applied to remove two children (aged 16½ and 12) to Canada, the judge at first instance erred in looking at their combined welfare and granting the order. The younger son did not want to go and it was decided not to be in his best interests, with the Judge ruling he should remain in England at least for the time being.

Removal Refused when Contact Could not Occur: C v. C

In C v. C [2011] EWHC 335 (Fam); [2011] 2 FLR 701 leave to remove to the USA was refused on the basis that where a shared care agreement was in place (specifying that the children spend 20 days with the mother and 10 with the father), and where the children were thriving seeing both parents, it would not be in their interest to be removed from the jurisdiction to the USA where they would not be able to see their father as regularly.

CAFCASS Reports Not Always Necessary; Child Arrangements After Removal should be made Abroad: Re R

The case of Re R [2010] EWCA Civ 1137; [2011] 1 FLR 1336; [2011] Fam Law 139 touches on two major issues in removal cases.

Firstly, it was held that it was not always necessary to obtain a CAFCASS report before granting leave to remove, although, in practice, these are regularly ordered.

Secondly, and more substantively, the court considered the amount of time the child would spend with the respondent in Australia and whether it should make an order regulating child arrangements in Australia after removal, or require that the mother enter into a “mirror” contact agreement in Australia.

Wilson LJ held, at [22] that this was primarily a matter for the Australian court and that once leave to remove had been granted, the English court ceded jurisdiction to the Australian court:

“Another major ground of the proposed appeal is that the judge did not make any actual order for the father’s contact with L following the permitted move to Australia and/or did not require the mother, as a condition precedent to removal, to obtain a mirror order for contact in the Perth court. In my view this ground of appeal is misconceived. Although a contact order is, as I have noticed, now occasionally made by way of attachment to a grant of leave, it is contrary to principle. A contact order would be an order taking effect until further order of the English court. But, on a grant of leave, the English court is, if only for practical reasons, surrendering its control over the child to the foreign court. As was undoubtedly necessary, the judge in judgment extensively addressed the mother’s proposals for the father’s contact with L following any move to Australia and in effect the judge approved them. The tenor of his judgment was that the mother was committed to contact and would be highly unlikely to renege on her proposals without very good reason. But, were she to do so, it would of course be to the court in Perth that the father would turn; for any further order of the English court would not have effect in Australia. With the leave of the English court, he would be likely to present the judge’s judgment to the judge in Perth and seek an order for contact with L along the lines therein set out. Had the judge not in judgment addressed issues of contact fully, the father would have had a solid ground of appeal; but, for the reasons which I have given, he has no arguable complaint in respect of the absence of any actual order for contact. Nor does this court automatically require a foreign, mirror order to be in place before the child leaves England and Wales. In the circumstances in which the court has some doubt about the applicant’s bona fides in relation to the other parent’s contact, that precaution is often taken; but, in circumstances, like the present, in which the judge made the firmest conclusion about the mother’s commitment to contact, it would not be usual to put her to the expense and delay of obtaining a mirror order.”

The Applicant Must Demonstrate the Suitability of the Destination; the Enforcement of Child Arrangement Orders is Relevant: Re H

In Re H [2010] EWCA Civ 915; [2010] 2 FLR 1875; [2010] Fam Law 1069 it was held that it was no longer necessary for a CAFCASS officer to visit the country in question to determine whether it is in the best interest of the child to be relocated there. Instead the responsibility rested with the person wishing to remove the child to demonstrate to the court’s satisfaction that it was in the interests of the child to be relocated:

“[5] It is, however, not usual in relocation cases for a judge to commit the State to the substantial expenditure attendant upon the visit of a CAFCASS officer to make enquiries in the intended country of relocation; it is, rather, for the applicant, on her or his own behalf, to establish before the court that the arrangements for the child abroad are firm and satisfactory; and, if ever such expenditure were generally to have been justified, those days are gone.”

For many more exotic destinations for proposed relocation, where the courts have little experience, this may be a substantive hurdle for the applicant to pass before removal is granted.

It is also particularly relevant to non-EU and non-Hague countries where it could be argued that establishing the suitability of the destination may include the ability to enforce any child arrangement orders there.

In terms of whether the impact of the removal on the time spent with the parent left behind was a relevant factor, the court held, at [30], that the time that the child would spend with his father and the difficulties in maintaining that following his removal were relevant factors. They should be weighted against evidence in favour of his removal:

“Against these considerations are to be weighed the excellence of the child’s relationship with the father and the grave truncation of it which a removal to the Republic would entail. I have described the order for contact ultimately made by the judge and, of course, it is, to be technical, enforceable in the Republic, as a fellow state of the EU, by virtue of Article 41 of Council Regulation (EC) No. 2201/2003 (Brussels II Revised).”

Removal: In Practice

As with any area of law, there is sometimes a disparity between what is said by the appellate judges and the approach of the Circuit and District Judges who deal with these cases at first instance. As Ward LJ put it, bluntly, in Oceanbulk Shipping v. TMT Asia [2010] EWCA Civ 79 [2010] 1 WLR 1803 at [41]:

“I prefer the instincts of the youthful Mr Justice Stanley Burnton [as a High Court Judge] before he became corrupted by the arid atmosphere of this court. It goes to prove what every good old-fashioned county court judge knows: the higher you go, the less the essential oxygen of common sense is available to you.”

In practice, the first two questions asked by Thorpe LJ in Payne v. Payne are often, still the key issues in the case. The respondent will often allege that the proposed move is motivated not by a genuine desire for a better life abroad but, instead, a reaction to the breakdown of a relationship and a wish to move far away so as to limit the time the child living in the UK spends with his or her other parent. If the applicant cannot show that the proposed relocation is genuine he or she may struggle.

If the court is satisfied as to the bona fides of the relocation, the next questions are usually ones of practicalities. Will there be somewhere to live? How will the applicant support the family? Does the child have a school place? Is he or she able to speak the language?

Finally, and perhaps most importantly, the court often then considers how the respondent maintain his or her relationship with the removed child? Who will pay? Are there likely to be problems? If so, can they be resolved? It is not uncommon for applications to founder if the court is not satisfied that a relationship with both parents can be maintained, despite the relocation being highly advantageous otherwise.

Relocation Cases

Statutory Framework

There are no statutory provisions explicitly relating to the relocation of children within England and Wales or between England and Wales and one of the other UK jurisdictions. Section 13(b) Children Act 1989, does not apply to relocation cases (either within England and Wales or from England to another UK jurisdiction).

Procedure

Unlike removal from the jurisdiction, there is no statutory requirement to apply to the court for leave to relocate a child within the jurisdiction (per Butler-Sloss LJ in Re E [1997] EWCA Civ 3084; [1997] 2 FLR 638 at [17]). However, if there is a dispute, the court may determine the issue in one of two ways: as part of a child arrangements order or by a specific issue or prohibited steps order.

Relocation as Part of a Child Arrangements Order

The court may control where the parents live in the UK by way of a condition as to where the child must reside added to the normal child arrangements order made under s.8 Children Act 1989. The statutory power to do this is under s.11(7) which gives the court the power to impose conditions on the parents. This power can be used, as it was in Re E [1997] EWCA Civ 3084; [1997] 2 FLR 638, to provide the address at where the child should ordinarily reside, thereby prohibiting a relocation to another part of the country.

This method for control of relocation causes some theoretical and practical difficulties. It may not be clear how the court should proceed if the issue of relocation arose following the making of the child arrangements order. It may be the case that, depending on the drafting of the initial order, relocation could only be challenged by way of an application to amend the child arrangements order. Another problem, raised by Wilson LJ in Re F [2010] EWCA Civ 1428; [2011] 1 FLR 1382 at [23] was what should happen if relocation were the only substantive issue to be determined. He held that it would be undesirable for a party to apply for what was then called a residence order solely to determine the question of relocation. He concluded that a separate application for a specific issue or prohibited steps order would be appropriate in these circumstances.

Relocation as Part of a Specific Issue or Prohibited Steps Order

As mentioned above, Wilson LJ in Re F [2010] EWCA Civ 1428 at [23] suggested that should a parent wish to seek the court’s permission, preemptively, for a relocation, the correct procedure is an application under s.8 for a specific issue order:

“In the present case it was the parent who aspired to relocate (“the aspiring parent”) who wisely took the initiative by issue of legal proceedings. It is plain that she issued the correct form of application, namely an application for a specific issue order which would determine whether she might take the children to reside with her in the Orkneys.”

In the opposite situation, a parent wishing to stop a relocation may apply for a prohibited steps order under s.8 which allows the court to restrain a parent from moving. This approach was approved of by Thorpe LJ in Re B [2007] EWCA Civ 1055; [2008] 1 FLR 613; [2008] Fam Law 17 at [4]:

“Obviously if there is a major issue between the parents that is litigated in the context of an application for a prohibited steps order, as this present case demonstrates.”

Starting Proceedings

Whichever method is chosen, applications for permission to relocate are generally made with form C100 to start proceedings following a obligatory attempt at mediation (the “Mediation Information and Assessment Meeting” or MIAM), unless an exemption applies. Further details about this and other procedural requirements are set out above in the section about removal cases.

Fundamental Cases

After half-a-decade of uncertainty, the law in relation to relocation now appears to be reasonably settled, following the decision Black LJ in Re C [2015] EWCA Civ 1305; [2016] 3 WLR 1. However, it is helpful to consider three previous cases to understand how the court came to its decision and since, as with removal, the questions posed in the earlier authorities are often ones still being asked today by first instance judges.

Re E

In Re E [1997] EWCA Civ 3084; [1997] 2 FLR 638, Butler-Sloss LJ held, at [21], that there was an assumption in removal cases that the person with whom the child would live would be able to reside where he or she chooses within the jurisdiction. The court may consider it necessary to retain some control by way of making a condition as to where the parent should reside but this will be an unwarranted intrusion by the court into the family’s life unless the circumstances of the case are exceptional:

“[21]. A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to chose where he/she will live within the United Kingdom or with whom. There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way of conditions which include a condition of residence. Again, in public law cases involving local authorities, where a residence order may be made by the court in preference to a care order, section 11(7) conditions might be applied in somewhat different circumstances.”

However, it is important to read this paragraph in the context of the next where she held that relocation issues could be considered as part of the court’s decision as to with whom a child should live. The area of the country where each parent proposes living is a factor which may affect with which parent the child should live most of the time. The court may therefore rule on relocation even in non-exceptional cases:

“[22]. The correct approach is to look at the issue of where the children will live as one of the relevant factors in the context of the cross-applications for residence and not as a separate issue divorced from the question of residence. If the case is finely balanced between the respective advantages and disadvantages of the parents, the proposals put forward by each parent will assume considerable importance. If one parent’s plan is to remove the children against their wishes to a part of the country less suitable for them, it is an important factor to be taken into account by the court and might persuade the court in some cases to make a residence order in favour of the other parent. But, on the facts of the present appeal, it is clear that the welfare of the children points firmly to their living with their mother, and the advantage of remaining in London is outweighed by the other factors leading to granting a residence order to the mother.”

Re B

Thorpe LJ in Re B [2007] EWCA Civ 1055 at [7] held that his judgment in Re H [2001] EWCA Civ 1338; [2001] 2 FLR 1277 was authority for the proposition that Payne v. Payne [2001] 1 FLR 1052 should not apply in relocation cases and that Re E [1997] EWCA Civ 3084; [1997] 2 FLR 638 should be used instead:

“The case of Re: H included an endeavour on my part to rationalise the interface between the true relocation cases governed by the decision of this court in Payne v. Payne and the internal relocation cases governed by the decision of this court in Re: E.”

He went to outline, at [9], the test in Re E as being founded on the assumption that a parent will be able to relocate within the UK save in exceptional circumstances:

“By way of conclusion I would only endorse the treatment of this topic by Professor Lowe and his co−authors in International Movement of Children, published by Jordans in 2004. He, at page 90, considers movement of children within the United Kingdom, and reviewing the cases, concludes that a primary carer faced with an application for a prohibited steps order or the imposition of conditions on a residence order, will not, save in an exceptional case, be restrained by the court, because for the court so to do would be an unsustainable restriction on adult liberties and would be likely to have an adverse effect on the welfare of the child by denying the primary carer reasonable freedom of choice.”

This authority was controversial since it allowed relocation to take place far more easily than removal despite the fact that, for example, a relocation from Cornwall to rural Northumbria might cause far more disruption to the ability of a child to spend time with both his or her parents than one from Kent to Pas-de-Calais in France.

Re F

The problems raised by Re B were first gently raised and considered by Wilson LJ in Re F [2010] EWCA Civ 1428; [2011] 1 FLR 1382. After a review of the major authorities Wilson LJ stated that he was “puzzled” by three quite substantial features: what is the correct procedure for prohibiting a relocation following the grant of a residence order?; should the test for relocation be different to that of removal from the jurisdiction?; and should an order prohibiting relocation only be made in “exceptional” circumstances? Declining to answer them, there was considerable uncertainty for the next four years.

Re C

By 2015, in Re C [2015] EWCA Civ 1305; [2016] 3 W.L.R. 1; [2016] Fam. Law 284 the decision Re B seems firmly to have been rejected. Black LJ, as part of a detailed consideration of the law held at [24] and [25]:

“I have not been any more able than was Thorpe LJ [in Re H [2001] EWCA Civ 1338 [2001] 2 FLR 1277] to identify a convincing explanation for the position that has been adopted, whereby the freedom of a parent to move appears to have been accorded greater weight in internal relocation cases than in external relocation cases […]

“I am at a loss to identify any other obvious justification for keeping internal and external relocation cases in separate compartments.”

As a result, as was set out at [51]:

“There is no doubt that it is the welfare principle in section 1(1) of the [Children] Act which dictates the result in internal relocation cases, just as it is now acknowledged that it does in external relocation cases. It is difficult to see any room in the statutory scheme for the outcome to be dictated by other, different, principles. And when one goes back over the internal relocation cases, it is clear that one of the main influences behind the exceptionality “test” was always the welfare of the child. The protection of the freedom of the adults to choose where they would live within the United Kingdom was, of course, another significant influence, but the “exceptional cases” where that would be restricted were those where the welfare of the child required it.”

As is often the case, a useful summary was also provided by the concurring judgment of Bodey J at [85]:

“a) There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.

“b) The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child.

“c) In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.”

When considering the welfare of the child, the could will have regard to s.1(3) Children Act 1989 which is often called the “welfare check list”. This provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration and that should be determined by having regard, in particular, to:

1. (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
2. (b) his physical, emotional and educational needs;
3. (c) the likely effect on him of any change in his circumstances;
4. (d) his age, sex, background and any characteristics of his which the court considers relevant;
5. (e) any harm which he has suffered or is at risk of suffering;
6. (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;
7. (g) the range of powers available to the court under this Act in the proceedings in question.

Additionally, the court is reminded, at s.1(2) that 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 and, at s.1(2A), (assuming the application is for a PSO or SIO) it must presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare. The s.1(2A) criteria is often less determinative than might be expect, especially since, s.1(2b) provides that “‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child's time.”

Relocation: In Practice

In practice, relocation cases tend to fall into two categories. Most commonly, one parent does not wish to move a huge distance but simply far enough to make existing arrangements difficult. For example, if the travelling time between parents is an hour-and-a-half or two, it can be difficult for both of them to take the child to school or see him or her for short periods of time. In these cases, the relocation is often bundled up with the question of what the child arrangements should be and the issues are approach holistically.

More rarely, a parent wants to move a very long distance where traveling times might three or more hours. In those cases, the court often approaches the issue as if it were an application for removal since the travelling time between, say, Newquay to Norwich can be far greater than London to Paris and so the practical issues that arise in those cases can also arise here.