Court confirms that a child’s welfare is paramount in decisions regarding relocation within the UK
On 23 March 2015, a court order granted a mother permission to relocate with her 10-year-old daughter from London to Cumbria. The order permitted the mother to move the child from 1 September 2015 and ordered that the child would attend a particular school in Cumbria from the start of the new school term.
The child’s father lived in London and had argued that the child should remain in London and that the arrangements in respect of her care and her division of time between her parents should continue unchanged. His argument was unsuccessful and it was ordered that he was to spend time with the child on alternate weekends, alternating between Cumbria and London. In the event that the father was able to travel from London to Cumbria during the week, the child was to be in his care overnight for up to two nights per week.
Holidays were to be divided between the parents and the child was to be allowed to have daily contact with her father by telephone, Skype or Facetime.
The father appealed to the Court of Appeal claiming that, for a variety of reasons, the court had erred in making the March 2015 order and that the order should be set aside. He argued that the mother should not be able to relocate to Cumbria and that she, and the child, should remain living in London close to him.
The mother, who comes from the North Lancashire coast, viewed living in Cumbria as returning home and argued that the relocation would enable her and her daughter to live close to the mother’s family and enjoy “a typical rural life”.
The mother, represented by Emma Hatley, resisted the father’s appeal against the court order sanctioning her relocation. The father’s appeal was heard by the Court of Appeal on 28 October 2015.
Decision of the court
The father’s appeal generated a consideration of the legal principles to be applied in cases where a proposed move is within the UK (internal relocation cases).
It was accepted that there should be no difference in principle between internal relocation cases and cases of relocation outside the United Kingdom (external relocation cases).
Prior to this appeal, internal and external relocation authorities had been compartmentalised and the Court of Appeal observed that on a closer examination of the relevant law “the separate treatment of the two types of relocation begins to appear more questionable”. The court amalgamated the approach to internal and external relocation applications under the same umbrella. Giving the lead judgment, Lady Justice Black said:
“Relocation within the UK can create just as much, if not more, of a geographical and logistical barrier between the child and his or her parent as relocation abroad … The time has come to go back to the beginning to see how the present compartmentalised approach has come about, what principles really do apply in internal relocation cases, and what, if any, adjustments are desirable/permissible within the bounds of precedents.”
In summarising the position reached by the Court of Appeal, Lord Justice Vos explained that in cases concerning internal and external relocation the only test that the court applies is the paramount principle of the welfare of the child. In applying that test, the court must undertake a holistic balancing exercise by looking at all of the relevant factors, weighing one against the other.
The objective was to determine which of the available options best meets the requirement to promote the welfare of the child. The proper approach to be adopted in relation to internal relocation cases was stated in summary by Lord Justice Bodey as follows:
- There is no difference in basic approach as between internal and external relocation cases;
- The decision in either type of cases hinges on the welfare of the child;
- The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance in the context of determining the welfare of the child.
The three Court of Appeal judges unanimously dismissed the father’s appeal and held that as the decision of the lower court was not flawed in any material way, whether in relation to the application of the law or the treatment of facts, the order granting the mother permission to relocate to Cumbria with the child should be upheld. This landmark judgment is significant for all future relocation applications.
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