Moving On – A Guide to Internal Relocation With Children

Some of the most sensitive matters for judges in the Family Division involve internal relocation; that is one parent wanting to move to another part of the UK following a divorce. A fine, seemingly impossible balance must be struck between ensuring both parents can fully participate in their children’s lives, and allowing the primary carer of a couple’s children to take advantage of personal and/or professional opportunities that lie elsewhere in the UK.

A recent decision in the Court of Appeal has clarified the law on relocating within the UK. Re C (Internal Relocation) [2015] EWCA Civ 1305 determined the position on four essential questions:

  • Are the principles in internal relocation cases different from international cases?
  • If so, why?
  • Is “welfare” paramount?
  • Or, is there an “exceptionality test”?

The facts of the case

Re C involved a mother who wished to move from London to Cumbria with her 10-year-old child. The father, who had always been heavily involved in the child’s life objected to the move.

At first instance the Court allowed the mother to move to Cumbria, stating the move would be more beneficial to the child’s wellbeing than staying in London.

The father made an appeal to the Court of Appeal, which was unanimously dismissed.

The relocation was allowed.

The Court of Appeal’s decision on internal relocation

The judgement given by Lady Justice (LJ) Black, reviewed all the key cases involving relocation and answered the four essential questions as follows:

  • when making a decision on an internal relocation case, the same principles apply as those involving moving to a foreign country (external relocation)
  • in both cases, the welfare of the child is the paramount consideration
  • the wishes, considerations, and interests of the parents and the likely impact of the Court’s decision on them are important, but only in the context of evaluating and determining the welfare of the child
  • the case of Payne v Payne [2001] 1 FLR 1052 provides a checklist of the factors that the court may take into account when determining what is best for the child

The welfare of the child principle is laid out in the Children Act 1999. Factors to be considered include; the child’s wishes and feelings, their physical, emotional, and educational needs, the effect the change will have on the child, age, sex, background and characteristics, any harm that may be suffered and how capable the parents are in meeting the child’s needs.

Payne v Payne is the leading case for external relocation. It includes guidance for the courts to consider on whether the parent’s relocation application is “genuine” in the sense that it is not motivated by selfish desire or an intention to exclude the other parent from the child’s life. The application should be realistic, practical, and well researched. If satisfied, the court should then consider whether the other parent’s objections to relocation are due to a “genuine concern” for the welfare of the child or selfish reasons.

LJ Black made clear in Re C that the guidance in Payne v Payne should not be applied rigidly.

What this decision means for parents wishing to relocate within the UK

The Court of Appeal has made it clear that, from a legal perspective, there is no difference between an internal or external relocation. Both can have an enormous impact on the child and the relationship they have with the non-relocating parent.

Any decision made on internal relocation will be made with the child’s interests and welfare being the paramount consideration. The wishes, needs, and desires of the parents will only be taken into account when determining what is best for the child. The court is not interested in what may be best for the parent as an individual.

For a parent wishing to move for career reasons or a new relationship, this approach may seem unduly harsh. However, it is important to note that every case involving relocation is decided on its own facts. Therefore, if you are considering moving within the UK and the other parent opposes it, it is crucial to seek experienced legal advice. This also applies if you are the parent opposing the relocation.

Rosie Bracher is a specialist family law solicitors based in Barnstaple. We are vastly experienced in both internal and external relocation cases and all areas of family law. We have the knowledge and expertise to advise support and guide you throughout any family law matter. Please contact our office on 01271 314 904 and arrange to speak to one of our team in confidence.

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