Many separated parents wonder whether they can move to another part of the UK with their children without the other parent’s consent. This is known as internal relocation.

In this article, Sarah Harvey, a senior associate in the Divorce and Family team based in our Leeds office, explains when consent is required for internal relocation cases, how the courts assess relocation applications and what parents need to consider before planning a move.

Circumstances in which an application can arise

Internal relocation is a frequent issue in family law, typically arising from a range of circumstances. The motivations for moving from one region to another can be varied. Some of the most common examples are below:

• One parent has remarried or entered into a new relationship, and their partner lives in a different area or has secured employment elsewhere;
• A parent has been offered a new job in another part of the UK;
• A parent wishes to move closer to family or a support network;
• A parent is seeking an alternative lifestyle (e.g. relocating from a city to the countryside or vice versa); or
• A parent may seek to relocate due to educational considerations, (e.g. accessing schools or colleges which are highly ranked in the country).

Do I need permission to relocate internally from my child’s other parent?

If you are named in a Child Arrangement Order (CAO) as a person with whom the child is to live, technically you do not need the permission of the child’s other parent to relocate within the UK.

However, it is important to note that you must still be able to comply with any shared care arrangements set out within the CAO. If a move is likely to disrupt those arrangements (for example, due to the distance between the two homes), the arrangements will need to be varied. Further, if a move will require the child to change schools, permission will be needed.

Where the child’s other parent has stated their disagreement with an internal relocation, a unilateral move is highly likely to create tension and disruption to your co-parenting relationship. As such, it will almost always be advisable to either seek the other parent’s agreement or, in the absence of their agreement, obtain the court’s permission.

How does the court approach internal relocation applications?

The child’s welfare shall be the court’s paramount consideration (‘the paramountcy principle’) pursuant to Section 1 of the Children Act 1989. There is no presumption in favour of either parent. Instead, the court will consider what is the best outcome for the child’s welfare, having regard to the individual circumstances in the case.

The previous approach of the court in internal relocation cases had been to differentiate them from those of external relocation (a move outside of the UK). Previously, the court would restrict a parent’s right to reside anywhere within the UK only in exceptional circumstances.

However, the case of Re C (A child) (Internal Relocation) changed the court’s approach. The Court of Appeal held there was no difference in the basic approach between external and internal relocations. Instead, it is the child’s welfare that is the paramount consideration and the court will assess each case on its own facts.

How does the family court determine what is in the child’s best interests?

Where the child’s welfare is the court’s paramount consideration, the court should have regard for the factors set out in the ‘welfare checklist’ (section 1(3) of the Children Act 1989).

Those factors include:

• The ascertainable wishes and feelings of the child (considered in the light of their age and understanding);
• The child’s physical, emotional and educational needs;
• The likely effect upon them of the change in circumstances;
• Their age, sex, background and any other relevant characteristics;
• Any harm the child has suffered or is at risk of suffering;
• The capability of each of the parents and any other relevant person to meet the child’s needs; and

• The range of powers available to the court under this specific Act.

Guidance from case law

Case law has provided helpful guidance for judges when determining what is in a child’s best interests. The case of Payne v Payne (previously considered to be the leading case on this issue) set down an order of questions to be asked in relocation cases, including:

• Whether the application is genuine and realistic, ie not motivated by a selfish desire to exclude the other parent from the child’s life but based upon practical and well-researched propositions.
• Whether the opposition to such an application is motivated by a genuine concern for the child’s welfare or whether it is driven by an ulterior motive.
• What the impact on the applicant parent would be if permission were refused.

These questions were proposed as a starting point, subject at all times to the paramountcy principle.

A more recent case, F v G, demonstrates how the court applies the welfare checklist in practice. In this case, the court was asked to determine arrangements for two siblings: a three-year-old girl and a nine-year-old boy. During the Covid-19 lockdown, the mother relocated to the countryside with the children, which was initially agreed by the father as it was agreed they would return following the pandemic.

However, once restrictions were lifted, the mother made clear that she did not intend to return to London. The father opposed this. He argued that it was in the son’s best interests to return to London, especially as he had attended the same school since reception.

The court agreed and made a Child Arrangements Order providing that the son would live with the father during the week (from Sunday evening to Friday evening). The court was mindful of the importance of maintaining the siblings’ relationship. The court therefore ordered that the children should spend all weekends and holidays together, with those periods being shared between the parents.

While the courts are generally reluctant to separate siblings, this case illustrates that they will do so where it is necessary to promote the individual child’s welfare.

Judicial guidance for relocation cases

Further, the court laid down the following guidance for judges presiding over relocation cases:

• The welfare of the child is always paramount.
• There is no presumption in favour of the applicant parent.
• The reasonable proposals of the parent with a residence order or ‘lives with’ order wishing to relocate carry great weight.
• Such proposals must be scrutinised with great care, and the court needs to be satisfied there is a genuine motivation for the move.
• The effect on the applicant parent and the child’s new family of a refusal of permission is very important.
• The effect on the child of the denial of contact with the other parent and, in some cases, their family is very important.
• The opportunity for continuing contact between the child and the parent left behind may be highly significant.

However, these guidelines have been subject to considerable judicial scrutiny due to concerns that they created an unintended presumption in favour of granting permission in cases where the application was genuine and considered.

The now leading Court of Appeal decisions in K v K (children) (removal from jurisdiction), Re F (a child) (permission to relocate) and Re F (A Child) (International Relocation Cases) have determined that the Payne guidelines set out above should not be applied rigidly or dictate the outcome of a case. The Court of Appeal noted that the only authentic principle of law from Payne is that the child’s welfare is paramount.

That said, the Court of Appeal confirmed that the guidance from Payne is still valuable in that it helps judges identify factors that are likely to be important and can assist parents when preparing their case. However, these factors are not determinative.

Ultimately, a judge presiding over a relocation application must determine what is in the child’s best interests and what outcome promotes the child’s welfare.

Practical considerations

Any application to relocate internally with a child must be clearly thought-out with detailed and well-researched proposals demonstrating that such a move would be in the child’s best interests. While not being an exhaustive list, the court will expect careful consideration of the following practical points:

• It must be clear from the evidence that the application is made because of a genuine belief that the relocation would be in the child’s best interests. It should not be the case that a parent is trying to mould the child’s life into what they feel is in their own interests. It should not be motivated by a desire to disrupt or restrict the
  relationship between the child and their other parent.
• Any application should include detailed and well-researched proposals for contact between the child and the other parent. The proposal needs to include, for example, consideration of travel issues (if long journeys would be involved), the funding of such travel arrangements and indirect contact (such as phone calls, video calls and letters).
• There needs to be a clear explanation of how the applicant will support and facilitate the relationship between the child and the other parent to minimise any potential detriment caused by the relocation.

• The applicant must set out a clear and detailed plan of what life will be like for the child following the relocation. This should include:
  1. Where will they be living?
  2. How will any new accommodation be funded?
  3. Where will the child go to school?
  4. How will they financially support the child? What are their employment plans in the new location?
  5. What support network (e.g. family or friends) will be available to them and the child in the new location?

• As the case of F v G shows, each case will turn on its own facts. The child’s individual needs will need to be addressed in the application, and detailed consideration given to how the relocation meets those needs and is in their best interests.

All the above factors and any others relevant to the case will need to be supported by documentary evidence, for example, housing particulars, school prospectuses, contact schedules, employment details, and financial planning. The court will expect the parent to demonstrate that the proposals are realistic and have been considered thoroughly.

Adrian Clossick, Partner and Head of the Leeds divorce and family team, comments:

“How a relocation application is presented to the court can be crucial to its success. The court’s paramount consideration must be the welfare of the child. That is deceptively simple. It will require a judge to carefully weigh up several factors before coming to a decision that will undoubtedly be life-altering for the family. Preparing a clear, detailed application focusing clearly on the child or children gives a parent the best possible chance of success.”

You can find further information regarding our expertise, experience and team on our Divorce and Family or disputes about children pages.

If you require assistance from our team, please contact us.

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