It has often been said that some of the most contentious litigation occurs when there is a dispute over one parent moving away with the children in the face of opposition from the other parent. Associate solicitor Paul Reay explains.
I want to move away with our children, but my ex opposes this
Irrespective of whether the proposed move is to another part of the same country, or to the other side of the world, the strength of feelings created are often the same. Whilst sometimes these moves can be agreed between the parents and appropriate arrangements made, more often than not, such cases involve parties whose positions are polar opposites; one who would wish to move and one who strongly opposes it.
Relocation, relocation, relocation
It goes without saying that to move to a different part of the country – or a new country entirely – will have significant consequences. Take for example the case where two separated parents share the care of the child equally between themselves. This arrangement was most likely possible because the parents lived near one another. If, however, a distance is established then the amount of time the children spend with each parent is inevitably affected. Even a move of only two hours’ drive away would most likely render the continuation of the previous arrangement impossible. The impact of such a move on the children would also be significant: they will need to become accustomed to living predominantly with one parent whilst spending time with the other during school holidays or at weekends, they will have to start a new school, make new friends – the list goes on.
Due to the fact that such cases have a grave effect on children, such cases are determined very carefully by the Court. In recent years, the Court of Appeal has considered a number or cases involving internal and external relocation and been required to assist – and at times remind – other judges and practitioners of the correct process to adopt when dealing with such cases. Further guidance was also provided in the decision in Re C [2015] EWCA Civ 1305. (https://www.familylawweek.co.uk/site.aspx?i=ed153303)
Having considered the Judgement of Lady Justice Black when determining the case of Re C [2015], it is I hope of use to anyone in this predicament that I highlight some of the important points raised within that Judgement: by doing so, if you are considering to relocate or in fact, trying to prevent someone from relocating, then I hope you will know what to expect from the Court.
Internal and external relocation – do they differ?
For a number of years, it was argued that cases involving one party relocating outside of the UK should be treated differently from those cases involving one party simply trying to relocate to another part of the UK. In Re H (children) (Residence Order) EWCA Civ 1338 [2001] 2 FLR 1277 (https://www.childreninlaw.co.uk/knowledgebase/re-s-leave-to-remove-from-jurisdiction-securing-return-from-holiday-2001-2-flr-506-fam-div-hogg-j/) Thorpe LJ postulated possible arguments for a different approach to be taken to internal and external relocation cases, yet could not find a particularly satisfactory foundation for it. A perfect example of why such an approach could cause problems can be found in the case of Re F (Internal Relocation) [2010] EWCA Civ 1428 [2011] 1 FLR 1382 (https://www.tandfonline.com/doi/abs/10.1080/09649069.2011.617074) In this case, one party sought to move from the North East of England to one of the Orkney Islands. Although still within the UK, when looking at this move in further detail, such a move would be just as much, indeed if not more, of a geographical and logistical barrier as a relocation abroad. Put simply, it is easier to travel from Newcastle to Paris than it is from Newcastle to the Orkney Islands.
Black LJ concurred with the view of Thorpe LJ as she agreed that there was no justification to distinguish between internal and external relocation cases.
If the Courts do not differentiate between internal and external relocation, then what do they consider when deciding such cases?
Black LJ, in Re C has reaffirmed the position that ‘the welfare of the child is paramount’. In K v K (relocation: Shared Care Arrangement) [2011] EWCA Civ 793 [2012] 2 FLR 880 and Re F (Relocation) [2012] EWCA Civ 1364 [2013] 1 FLR 645 it was established that this was the only principle to be applied when determining an application to remove a child permanently from the UK, and it now appears that the same principle applies to cases involving internal relocation.
Child welfare is paramount
When considering child welfare, the Court will undertake a holistic balancing exercise, considering all aspects of the Welfare Checklist (Section 1 (3) of the Children Act 1989) even where it is not statutorily applicable. This exercise is not a linear one and may vary hugely case to case.
It is important to consider Black LJ’s full judgement in Re C, yet I feel it is rather refreshing that Black LJ made clear that child welfare is paramount and that the Welfare Principle in Section 1 (1) of the Children Act 1989 will dictate the result in internal and external relocation cases.
Having had experience in dealing with both internal and external relocation cases, I know first-hand that cases of such a nature are finely balanced and can often bring great sadness. There are no winners.
If after careful analysis, the Court find that it would be in a child’s interest to relocate to another part of the world or even part of the UK, then it is imperative that differences are immediately placed to one side and that the party who is relocating does all s/he can to ensure that any children involved can maintain their relationship with their other parent.
Right of contact
It should never be forgotten that the Right of Contact is the Right of the Child, and not the parent that they live with. It is always in a child’s best interests to have a relationship with both their parents, unless there are significant welfare concerns that would prevent the same. We are blessed that we now live in an age where we can sit and talk to a relative in another part of the UK or other country, face to face, by the click of a button using Facetime or Skype, or Zoom or whatever digital platform is available to you. I urge parents who may live many miles apart to take advantage of this technology and actively encourage their children to say hi to their dad using Facetime or to tell their mum about their day on Zoom, as to receive such calls for one parent will mean a great deal.
