username

password

Cafcass advert1 Garden CourtHarcourt Chambersimage of 4 Paper Buildings logoHind CourtDNA LegalGarden CourtCoram Chamberssite by Zehuti

Home > Articles > 2016 archive

Internal Relocation: The Law Following Re C (Internal Relocation) [2015] EWCA Civ 1305

Deborah Eaton QC and Stephen Jarmain, barrister, both of 1 King’s Bench Walk, explain the lessons to be learned from the important Court of Appeal judgment on internal relocation in which the authors represented the mother.

Deborah Eaton QC, 1 King's Bench WalkStephen Jarmain, barrister, 1 King's Bench Walk














Deborah Eaton QC
 and Stephen Jarmain, barrister, of 1 King's Bench Walk

Introduction

Attempting to understand the principles to be applied in internal relocation cases has been one of the most difficult tasks in family law. The court has invariably been placed in the position of seeking to balance on the one hand the weight to be given to the desire of a primary carer to relocate within the United Kingdom against, on the other, the effect of a move on the relationship of the child with the left-behind parent, particularly where the distance involved is considerable. Establishing the true position has not been made easy by the existence of a number of apparently conflicting Court of Appeal judgments delivered over the last seventeen years, many of which have been given without the courts having heard full argument or having received citation of all the pre-existing authorities. This has resulted in essential questions remaining unresolved: are the principles different in internal relocation cases compared with international cases? If so, why? Is welfare paramount? Or is there an 'exceptionality test'? These were the issues facing us and the court in Re C (Internal Relocation) [2015] EWCA Civ 1305, heard by the Court of Appeal on 28 October 2015.


The facts

Factually, Re C was not a complex case: the mother was applying to relocate with a 10-year old child (aged 8 at the time of the hearing) from London to Cumbria; the father opposed the application. The Child and Family Reporter considered the case to be finely balanced but came down on the side of opposing the move. The first instance Recorder disagreed and permitted the mother to permanently relocate with the child to Cumbria. The father appealed and on appeal The International Centre for Family Law, Policy and Practice were given leave to intervene because of the potential ramifications of the decision. In the event the Court of Appeal (Black LJ, Vos LJ and Bodey J) unanimously dismissed the father's appeal on 18 December 2015. The lead judgment of Black LJ includes a careful consideration of the first instance judgment, but what will be of much more interest to practitioners is the detailed review of the authorities and the long overdue clarification of the principles to be applied in internal relocation cases.


The key issues

An interesting feature of the law on internal relocation is that very few cases on the subject have reached the Court of Appeal. In fact, since 1997, only ten cases had been reported concerning this issue. These were:

a. Re E (Residence: Imposition of Conditions) [1997] EWCA Civ 3084 [1997] 2 FLR 638 (hereafter "Re E");

b. Re S (A Child) (Residence Order: Condition) [2001] EWCA Civ 847 [2001] 3 FCR 154 (hereafter "Re S (No 1)");

c. Re H (Children) (Residence Order: Condition) [2001], EWCA Civ 1338 [2001] 2 FLR 1277 (hereafter "Re H");

d. Re S (a child) (residence order: condition) (No 2) [2002] EWCA Civ 1795 [2003] 1 FCR 138 (hereafter "Re S (No 2)";

e. E v E (Shared Residence: Financial Relief: Yardstick of Equality) [2006] EWCA Civ 843 [2006] 2 FLR 1228 (herewith "E v E");

f. Re B (Prohibited Steps Order) [2007] EWCA Civ 1055 [2008] 1 FLR 613 (hereafter "Re B");

g. Re L (Shared Residence Order) [2009] EWCA Civ 20 [2009] 1 FLR 1157 (hereafter "Re L");

h. Re F (Internal Relocation) [2010] EWCA Civ 1423 [2011] 1 FLR 1382 (hereafter "Re F (Internal Relocation) [2010]");

i. S (Child) [2012] EWCA Civ 1031 (hereafter "S (Child) [2012]");

j. Re M (A Child) [2014] EWCA Civ 1755 (hereafter "Re M").

Since 2001 not one of the cases has involved all of the relevant jurisprudence being cited to the Court. In these circumstances it is perhaps not altogether surprising that the law became somewhat confused and confusing to both the judiciary and practitioners alike.

The appeal in Re C was timely given the very recent decision of the Court of Appeal in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, handed down on 6 August 2015. In that case, following on from K v K (International Relocation: Shared Care Arrangement) [2011] EWCA Civ 793, [2012] 1 FLR 1052, the Court sought to clarify the approach to be taken in international relocation cases. The following principles emerge from K v K and Re F [2015]:

a. The court's task is to undertake a global, holistic, comparative evaluation of welfare issues to determine what is in a child's best interests;

b. The wishes of a child are a significant and relevant factor;

c. The court must, where the outcomes proposed are likely to have a significant impact on the Article 8 rights of the child(ren) and parties, consider the proportionality of what is proposed;

d. A 'taxonomic' approach, seeking to fit the myriad factual scenarios that present in relocation cases into closed 'categories', is unhelpful and should be avoided [see e.g. Black LJ in K v K at §145]. In other words, the label is not as important as what is actually happening on the ground;

e. That the court must be careful, when interpreting the jurisprudence, to differentiate between "guidance" and "principle", one of which is binding and the other which is not;

f. Guidance given in earlier cases as to the factors that are likely to be relevant in the evaluation is helpful, but the weight to be given to any particular factor will vary from case to case.

While the clarification of the legal principles to be applied in international cases was very valuable for practitioners, the question remained whether similar principles applied in internal cases. It was that question which occupied the court, and the lawyers, in Re C.


The rival arguments

One of the father's central arguments in Re C was that the first instance judge had been wrong to make use of the well-known 'discipline' identified in Payne v Payne [2001] EWCA Civ 166, [2001]1 FLR 1052 in reaching his decision.  The father argued that this was erroneous, as the Court of Appeal had always required that the law between 'internal' and 'external' cases must be kept distinct. His argument was built upon the obiter comments made in passing by Black LJ in K v K to the effect that internal relocation cases had 'followed a slightly different path, outside the reach of Payne'; and the passages in Re F (Internal Relocation) [2011] 1 FLR 1382 in which Wilson LJ (as he then was) discussed the interface between external and internal relocation cases, concluding that His Lordship would not have 'mean[t] to suggest, particularly in the light of the current controversy surrounding the aptness of the principles which have been developed in this court in relation to the determination of applications in respect of external relocation, that, as they stand, they should – or can – be applied to cases of internal relocation' [§24].

The other pressing question for the Court of Appeal in Re C was how to approach the so-called 'exceptionality test' referred to by Wilson LJ in Re F (Internal Relocation) [2011], something which he considered to be 'an impermissible gloss' on the welfare principle but a judicial invention that it was 'too late' to expunge [see §26].

Our argument, which was accepted by the Court of Appeal, was that:

a. the principles (as opposed to guidance) at play in internal relocation cases are in fact the same principles which have been recently identified in K v K and F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 (hereafter "F (International Relocation Cases) [2015]")  as being applicable in external relocation cases;

b. a detailed consideration of the authorities demonstrates that the intention of the courts has, since at least 2001, been that there should be consistency between the principles engaged in internal and external relocation cases;

c. there is no basis upon which to suggest that the authorities in external relocation cases are irrelevant to internal relocation cases, or that reference to an 'external authority' in an 'internal case' is grounds for setting aside a judicial decision;

d. Payne remains a useful tool for judges in external relocation cases, and as such should also be a useful tool in internal relocation cases.

 

"Principle vs Guidance"

 In identifying the principles at play in internal and external relocation cases, it is important to bear in mind the words of Moore-Bick LJ in K v K:

"[86]   I accept, of course, that the decision in Payne v Payne is binding on this court, as it is on all courts apart from the Supreme Court, but it is binding in the true sense only for its ratio decidendi…having considered Payne v Payne itself and the authorities in which it has been discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance."

We argued that as with external relocation cases, it appeared that the controversy relating to internal relocation cases arose because of the failure to distinguish between legal principle and guidance. In Payne, Butler-Sloss LJ cautioned that the principles in external cases had been expressed in "too rigid terms" and were being applied "unduly firmly" [§82]. Ryder LJ explained in F (International Relocation Cases) [2015] that this warning had gone unheeded. Interestingly, a similar caution was issued by Laws LJ in one of the earlier internal relocation cases, Re S (a child) (residence order: condition) (No 2):

"[37] The jurisprudence shows that the imposition, under Section 11(7), of conditions upon a residence order is something to be contemplated only in exceptional circumstances. However, to borrow a phrase from another area of the law, the categories of what is exceptional are not closed; nor was my Lady suggesting in E that they were. Indeed they could not be: to formulate a definition of exceptional circumstances, whether inclusive or exclusive, would be to transform a broad principle into a hard-edged rule. But hard-edged rules are made if at all by the statute, not by the courts."         

As the analysis below will show, the only 'hard-edged' principle in the internal relocation jurisprudence is the statute-based paramountcy principle. It appears however that this principle had become obscured by the interpretation of comments made in the earlier cases, which has resulted in guidance being elevated into principle.


Judicial commentary

The comments upon which the father relied in Re F (Internal Relocation) [2010] and K v K were in both cases obiter, and made without having heard full argument as to the interface between the internal and external relocation jurisprudence. Further, they must be looked at in context. 

The comments of Wilson LJ in Re F (Internal Relocation) [2010] were undoubtedly an important contribution to the development of the law on internal relocation. However, they were made in October 2010, before the Court of Appeal heard K v K and F (International Relocation Cases [2015]. It is telling that Wilson LJ referred to the uncertain state of the law that existed at that time:

"particularly in the light of the current controversy surrounding the aptness of the principles which have been developed in this court in relation to the determination of applications in respect of external relocation, that, as they stand, they should – or can – be applied to cases of internal relocation…" 

The 'controversy' referred to no longer exists, having been resolved by K v K and F (International Relocation Cases) [2015]. As such the comments of Wilson LJ were, we argued, of somewhat less significance. Indeed, where he to be considering this same point now, he may well express a different view. 

Similarly Black LJ's was not, in K v K, attempting to develop the law relating to internal relocation. Her Ladyship explicitly said in that case:

"such argument as there may be about [the internal relocation cases] is not for today" [K v K §147]

And later, in another internal relocation case:

"If there is a debate still to be had about the proper approach to domestic relocation cases following [K v K], it follows that this case is not one in which it is necessary or appropriate to have it…" [S (Child) [2012]

It cannot therefore be said that the comments either of Wilson LJ or Black LJ were intended to be definitive statements of principle concerning the interplay between internal and external relocation cases.


The principles in internal relocation cases

Historical review
The first case to address the issue of internal relocation was Re E (Residence: Imposition of Conditions) [1997].  The key passages from the judgment of Butler-Sloss LJ (as she then was), giving the judgment of the court which included Saville and Thorpe LJJ, are:

"[20] 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.

[21] 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."

                 
The reader will note that in §20 Butler-Sloss LJ suggests that the "correct approach" is to carry out a comparative analysis of the "advantages and disadvantages" of the parents and their proposals. That can be seen as a holistic approach, consistent with that taken in external relocation cases, as opposed to a linear analysis. Regrettably that important guidance was subsequently overlooked in favour of an emphasis on the reference to 'exceptional' in §19. 

The other aspect of Re E that has drawn attention is the observation made by Butler-Sloss LJ concerning the two 'lines' of authority:

"[23] In my view the principles set out in a long line of authorities relating to leave to remove permanently from the jurisdiction have no application to conditions proposed under s 11(7)…"

It would seem from that passage that Butler-Sloss LJ was saying that external relocation authorities were not to be used in internal cases. It is this comment which troubled Wilson LJ in Re F (Internal Relocation) [2010] and indeed has been relied upon variously as suggesting that there two 'areas' of jurisprudence which must be considered separately. However, as will be shown by the analysis below, this observation was subsequently revisited and significantly qualified by this court.

The 2001-2002 cases
Perhaps the most important authorities concerning internal relocation were the three cases heard in 2001 and 2002: Re S (No 1), decided on 11 May 2001 (Thorpe and Clarke LJJ), Re H, decided on 30 July 2001 (Thorpe and Astill LJJ) and Re S (No 2), decided on 4 December 2002 (Butler-Sloss P, Waller and Laws LJJ).

The historical context of these cases is very important. They were all decided shortly after the coming into force of the Human Rights Act 1998 and the decision of this court in Payne (dated 13 February 2001) and must be interpreted accordingly.

We submitted that, on a full analysis, these cases demonstrated that:

a. the two principles at play in internal relocation cases are, and always have been, welfare and proportionality (as in external cases); and

b. it was always intended that there should be consistency in the law applied to internal and external relocations.

The first of those cases, Re S (No 1), concerned a mother's plans to relocate from Croydon to Cornwall with an eight-year-old child with Downs Syndrome. The first instance judge had made a residence order in favour of the mother and then imposed a condition restricting the child to living in the Croydon area. The mother appealed. Her appeal was allowed and the matter remitted for rehearing, essentially on the basis that the judge had given insufficient consideration to the effect of refusal on the mother. In giving judgment Thorpe LJ explicitly said:

"[17]...It seems to me that it is necessary to have some consistency between that line of authority applying to section 13(1)(b) cases, and those in which a judge has to consider whether it is open to him to apply a condition under section 11(7) to a residence order that restricts the primary carer´s place of residence."     

Clarke LJ agreed:

"[36] My Lord has referred to the line of cases culminating in Payne v Payne [2001] 1 FCR 425. I agree that it is desirable that there should be some consistency between that class of case and the class of case with which we are concerned..."  

Notably, when the case returned to the Court of Appeal in 2002 as Re S (No 2), Butler-Sloss P explicitly approved Thorpe LJ's approach to "consistency" [§20], saying:

"[20] I do not consider there is any real difference of approach between Thorpe LJ and myself as to the relevance of the principles under sections 11(7) and 13(1)(b) of the Children Act…"            

Put another way, the external authorities are relevant in internal cases. Plainly this was a very significant qualification on what Her Ladyship had said in Re E.

Returning to Re S (No 1), the judgment of Clarke LJ is also very significant. In summarising the correct approach, His Lordship said:

"[37] Thus the general rule is clear in both classes of case. The principal carer will ordinary be entitled to move to wherever he or she wishes. However, in the Payne v Payne class of case, the application to remove the child from the United Kingdom will ordinarily be granted unless the court concludes that it is incompatible with the welfare of the child. In the present class of case, no condition restricting the area of residence will be imposed save in exceptional cases. As I see it, no case will be an exceptional case unless the absence of such a condition would be incompatible with the welfare of the child."           

We submitted that this paragraph demonstrates that:

a. The court was adopting a fundamentally welfare-based approach; and

b. the court considered that the underlying principle in the two 'areas' should be the same.

Once again, this approach was explicitly approved by Butler-Sloss P in Re S (No 2):

"[21] I respectfully agree. Clarke LJ in re S set out the relative positions of the two types of application with, if I may respectfully say so, admirable clarity at page 163, paragraph 37".

It can therefore be seen that when considered the Re S cases, decided after and no doubt in light of Payne, significantly redefined the approach taken in Re E. The underlying principles were simply welfare and proportionality. That analysis is further supported by other passages in the judgement of Butler-Sloss P in Re S (No 2):

"[10] Section 1(1) of the Children Act 1989 applies the paramountcy principle. Section 1 has to be read subject to Article 8 of the European Convention which provides, inter alia, for the rights of the mother, the father and the child. There are issues relating to the rights of the parents but, in my judgment, the welfare of this child in her very special circumstances is the most important factor for the attention of this court as the court below."

[...]

[17] In accordance with the decisions which I set out above, the general principle is clear that a suitable parent entrusted with the primary care of a child by way of a residence order should be able to choose where he/she will live and with whom. It will be most unusual for a court to interfere with that general right of the primary carer. There will however be exceptional circumstances in which conditions will have, in order to protect the best interests of the child, to be imposed albeit those conditions will interfere with the general right to choose where to live within the United Kingdom. I did not intend in my judgment in re E to exclude the possibility that an exceptional case might arise in which a parent against whom there is no complaint might nonetheless have to face some restriction of movement. Section 11(7) provides a safety net to allow for the exercise of discretion under the provisions of section 1 where the paramountcy of the welfare of the child exceptionally requires the court to impose restrictions upon the primary carer which otherwise would be unacceptable. I could not, as Clarke LJ pointed out in paragraph 34, in accordance with the wording of section 11(7) shut the door on the exceptional case. I respectfully agree with the interpretation given by Clarke LJ to that passage in my judgment."

Thorpe LJ's approach
An analysis of the 2001-2002 cases requires some consideration of the judgments given by Thorpe LJ in Re S (No 1) and Re H. It could be argued that the approach taken by Thorpe LJ in Re S (No. 1) [see §15-25], when looked at in isolation, places greater emphasis on adult autonomy than welfare. However the judgment must be looked at in light in the context of (i) Thorpe LJ's prior judgment in Payne (to which Thorpe LJ refers in Re S (No 1)), (ii) Thorpe LJ's later judgment in Re H. A true analysis of the judgments, when taken together, demonstrates Thorpe LJ's recognition that the only principles in internal cases and external cases are welfare and proportionality.

The decision in Payne was made at a time when the Human Rights Act 1998 had not long been in force and the subject of the interface of adult rights with the rights of a child was uppermost in the mind of family judges and lawyers. The subject received the following treatment from Thorpe LJ in Payne:

"[36] But despite the fact that this appeal has raised only the asserted Art 8 rights of the secondary caring parent, we should not lose sight of the Art 8 rights of the primary carer, although not specifically asserted in argument. However an appeal may well arise in which a disappointed applicant will contend that s 13(1)(b) of the Children Act 1989 imposes a disproportionate restriction on a parent's right to determine her place of habitual residence. This right was recognised by the decision of this court in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 within the confines of the jurisdiction of the court and indeed beyond within the UK. But why should the same right not extend to anywhere within the European Union (having regard to Art 48 of the Treaty of Rome) or, beyond that, within wider Europe? From that point to a right to world-wide mobility seems but a short step. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 does specifically recognise this right of mobility in Art 2 of Protocol 4 which provides:

[37] '1. Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

a. Everybody shall be free to leave any country, including his own.

b. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, for the prevention of crime, for the protection of health and morals, or for the protection of the rights and freedom of others.'

Although Protocol 4 has yet to be ratified by the UK, it undoubtedly lends force to the argument that a failure or refusal to recognise a right of mobility beyond the somewhat fortuitous jurisdictional boundary represents a stance of disproportionate parochialism. Although for the purposes of this appeal this paragraph is digressive it does serve to illustrate the generalisation that each member of the fractured family has rights to assert and that in balancing them the court must adhere to the paramountcy of the welfare principle."          

We submitted that these passages clearly underlined Thorpe LJ's recognition that welfare is paramount regardless of a "somewhat fortuitous jurisdictional boundary", i.e. in both internal and external cases, albeit the court is still required to consider the question of proportionality. The reader will note Thorpe LJ's clear view expressed in Re S (No 1) that the court should not seek to "strive for some sort of ideal over and above the rival proposals of the available primary carers" [§25], which resonates with the view expressed in Glaser v United Kingdom (Case No 32346/96), [2001] 1 FLR 153 that the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The parallel with the approach to be taken in external cases, as explained in K v K and Re F (International Relocation Cases) [2015], is stark.

Re H
Considerable support for this interpretation of the earlier authorities can be drawn from Thorpe LJ's judgment in Re H (Children) (Residence order: Condition) [2001] EWCA Civ 1338 [2001] 2 FLR 1277 ("Re H"), handed down on 30 July 2001, just weeks after Re S (No 1) and before Re S (No 2). This case is highly significant in the context of this appeal as the essential issue for the court to decide was whether a removal to Northern Ireland was an 'external' or 'internal' relocation and therefore which 'line of authority' should apply. After commenting once again on the "obvious need for consistency of principle in the determination of relocation cases both within and without the United Kingdom" [§17], Thorpe LJ resolved the debate as to whether the removal was 'internal' or 'external' by saying:

"[19] Does it matter? In practice, probably not much. The relocation within the United Kingdom may be highly problematic, as this case illustrates. The primary carer will invariably give notice, directly or indirectly, of an intended move. The court has power under section 8 to make a prohibited steps order or to impose a condition under section 11(7) to the residence order. Whilst the primary carer may not have an obligation to apply under section 13(1)(b), he will still have to defeat the challenge of an application for a prohibited steps order or for the imposition of a condition to the residence order. Perhaps the only certain constant is that, where there is a dispute between the parents, incapable of resolution by negotiations or mediation, it must be decided by the court. In making its decision the court must always apply the welfare test as paramount, whether the relocation is internal or external. The test, in the case of external relocation, is clearly laid down in Payne v Payne. …

[20] What then is the rationalisation for freer movement of the primary carer within the United Kingdom? It seems to me to be obvious. Within the same sovereignty there will be the same system of laws, with the same rights of the citizen, rights for instance to education, health care and statutory benefits. Equally, it can be said that within Europe, whilst perhaps the burden on the applicant may be greater, it is equally mitigated by the fact that within the Community there is the same fundamental approach to social issues and a real endeavour to achieve harmonisation, obviously in social policy but also in family justice. If, moving to the third alternative, the application is for relocation outside the European region, the necessary adjustment may be rationalized on the basis that the social and other circumstances involved in relocation may require much greater adjustment for the children; alternatively, that the obstacles to contact may be enhanced. However, attempts to rationalize gradation of the hurdles that the applicant must clear are always liable to be tested by specific example, as this case suggests. What is the rationalisation for a different test to be applied to an application to relocate to Belfast, as opposed to, say, an application to relocate from Gloucester to Dublin? All that the court can do is to remember that in each and every case the decision must rest on the paramount principle of child welfare."

Put simply, Thorpe LJ was saying that the principles to be applied were there same, and that welfare was paramount.

Thorpe LJ's judgment in Re H must of course be interpreted in light of what His Lordship said about it in Re B, as follows:

"[7] The judgment that I gave in the case of Re H does not, on reconsideration, sufficiently reflect the fact that the imposition of a condition to a residence order restricting the primary carer's right to choose his or her place of residence is a truly exceptional order. 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. At the conclusion of the passage, I questioned the rationalisation for a different test to be applied to an application to relocate to Belfast as opposed to, say, an application to relocate to Dublin, and having posed the question I continued:

"All that the court can do is to remember that in each and every case the decision must rest on the paramount principle of child welfare."

[8] I see that the Recorder, reading that passage, did not have his attention sufficiently directed to the earlier case of Re E. In my reasoning for upholding the imposition of a condition preventing the relocation in the case of Re H, I did not perhaps sufficiently clearly state that the circumstances (particularly the impact upon the mother of a refusal of the condition, fully established by mental health evidence) clearly took the case into the exceptional category identified Butler-Sloss LJ in Re E."               

These passages were interpreted, we submitted wrongly, as suggesting that the principle in internal cases was 'exceptionality', not 'welfare'. However the reader will note that Thorpe LJ goes on at §9 to approve the "treatment of the topic" by Professor Lowe and his colleagues in International Movement of Children, which itself returns to the comparative evaluation proposed by Butler-Sloss in Re E (addressed at §44-§45 of this skeleton). What is also significant about Re B is that it does not appear from the case report that Re S (No 2) was in fact cited. That is a significant omission given:

a. the extent to which, Butler-Sloss P qualified her earlier comments in Re E that were clearly influential in the court's thinking in Re B;

b. the treatment of the guidance by Laws LJ, and his warning as to the application of 'hard-edged rules'.

For these reason we contended that, when read together with the earlier cases, the judgment of Thorpe LJ in Re B cannot be said to materially depart from the underlying principles identified in Re S (No 1), Re S (No 2) and Re H: welfare and proportionality.

The later cases
The above analysis demonstrates that:

a. the underlying principles in the early cases on internal relocation were consistent with those at play in external cases, being welfare and proportionality; and

b. certainly since 2001, the approach of this court in internal cases was intended to be consistent with that taken in external cases. This contention is further supported by the later cases, including the judgments of Wall LJ (on both occasions giving the judgment of the court) in:

i. E v E (Shared Residence: Financial Relief: Yardstick of Equality) [2006] EWCA Civ 843 [2006] 2 FLR 1228 ("E v E") in which His Lordship said:

"[32] The matter can, we think, be tested by taking an analogy with the line of cases which begins with Poel v Poel [1970] 1 WLR 1469 and finds its most recent expression of principle in P v P [2001] Fam 473. A mother with a residence order wishes to relocate abroad with her children. The children's father objects. The function of the court is to decide whether or not the relocation is in the best interests of the children. In that context, the judge's duty is to subject the mother's relocation proposals to rigorous scrutiny, and (assuming the mother to be acting bona fide) to balance their benefits for the children, and the effect on the mother of refusing her application, against the effect on the children of the disruption of their relationship with their father. The fact that the mother does not need the formal leave of the court to move to Bexhill is beside the point. If it was doubtful as to whether it was in the interests of the children to move to Bexhill, the court would need to consider whether it would be preferable to attach a condition to any continued residence order, shared or otherwise, in favour of the mother that they should continue to reside with her in Bognor or indeed to invest their sole residence in the father."

ii. Re L (Shared Residence Order) [2009] EWCA Civ 20 [2009] 1 FLR 1157 ("Re L"), in which His Lordship said:

"[51]  In the first place, I think the judge was wrong to distinguish this case from the authorities cited to him on the basis that they dealt with sole residence orders, whereas he was dealing with a shared residence order. This is not, in my judgment, a narrow legalistic point. For the reasons which I have given in para [36] above, the correct approach, in my view, is not to distinguish the case but to look at the underlying factual substratum in welfare terms, bearing in mind the tension which may well exist between the freedom to relocate which any parent must enjoy against the welfare of the child which may militate against relocation. In my judgment, it is this balance which is critical, and the danger of distinguishing the case as a matter of law is that the court will either lose sight of, or give insufficient weight to the former consideration.

Similarly, a welfare-based analysis by the first instance judge, Her Honour Judge Knowles, in S (Child) [2012] received no criticism from the Court of Appeal (Sir Mark Potter and Black LJ, Norris J agreeing) in dismissing the appeal.

The above analysis demonstrates that, as in external cases, the underlying principles are:

a. That the court's decision is ultimately a welfare decision, taken following a holistic, comparative analysis of the proposals before the court;

b. Given the inevitable interference with the rights of the individual family members involved, a proportionality assessment will often be necessary.


Re C: the principles to be applied

Black LJ gave detailed consideration to these arguments in her lead judgment [see §18-§61] and, in the event, accepted them. 

Firstly, Her Ladyship accepted our analysis of how the jurisprudence had developed:

"The situation seems to me to have been very like that which developed in relation to external relocation, with the guidance provided in Payne v Payne being taken to be binding legal principle when, in fact, as K v K identified, the only authentic principle running through the entire line of external relocation cases was that the welfare of the child was the court's paramount consideration. When one goes back over the authorities on internal relocation, I think it is clear that the same has happened there." [§50]

Her Ladyship also agreed that there was no principled basis for continuing to 'compartmentalise' the two areas of jurisprudence. Geography did not in itself provide a good justification, as an internal relocation could very conceivably involve an equal or even greater distance than an international relocation (the famous example being Belfast versus Dublin). Equally Her Ladyship was not convinced by the explanation offered by Thorpe LJ in the earlier case of Re H (Children)(Residence Order: Condition) [2001] 2 FLR 1277, that internal cases were different due to the consistency of 'sovereignty' within the United Kingdom, and the fact that enforcement is more difficult in international cases. As her Ladyship explained, the United Kingdom has more than one system of laws, and the introduction of Brussels IIA and the 1996 Hague Convention has altered the picture with regard to enforceability of orders internationally. Otherwise Black LJ felt 'at a loss to identify any other obvious justification for keeping internal and external relocation cases in separate compartments' [§25].

Black LJ also agreed that welfare was indeed the 'central thread' running throughout the jurisprudence and that she "would not interpret the cases as imposing a supplementary requirement of exceptionality in internal relocation cases" [§53]. As such, she said:

"Once welfare has been identified as the governing principle in internal relocation cases, there is no reason to differentiate between those cases and external relocation cases" [§54].

In summarising the correct approach in [§51] and [§53] of her judgment, Black LJ concluded:

"[51] There is no doubt that it is the welfare principle in section 1(1) of the [Children Act 1989] 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..."

Agreeing with Black LJ, Vos LJ and Bodey J expressed their conclusions in similar terms:

"As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child.  The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable.  The exercise is not a linear one.  It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child.  It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional." [Vos LJ, §82]

"…The decision in either type of case hinges ultimately on the welfare of the child." [Bodey J, §85a]


Relevance of Payne

One thing that could certainly be said of the previous authorities, either 'internal' or 'external', is that they do no say that the mere mention in an 'internal case' of Payne (or indeed any other 'external case') is wrong. That is not surprising: such a rigid approach would be artificial and indeed result in an unnecessary focus on 'taxonomy' (is it an internal case? or an external case? as in Re H), something expressly disapproved of albeit in a slightly different context by Black LJ in K v K (see below). Where the statutory provisions to be applied are the same, such an approach cannot be justifiable.

So far as the use of Payne is concerned, it is now well-established that the view of Black LJ and Moore-Bick LJ in K v K  is to be preferred 1. The key passages are:

Per Black LJ:

"
[96]   ... Where my reasoning and that of Thorpe LJ diverge is in relation to point (ii), in particular in relation to the treatment of Payne v Payne. Thorpe LJ considers that Payne v Payne should not be applied in circumstances such as the present and that the judge should instead have applied the dicta of Hedley J in Re Y (Leave to Remove from Jurisdiction). For my part, as will become apparent, I would not put Payne v Payne so completely to one side. Whilst this makes no difference to the outcome of this case, it may not be without significance more generally.      

[…]

[144]   Payne v Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case. I do not see Hedley J's decision in Re Y (Leave to Remove from Jurisdiction) as representative of a different line of authority from Payne v Payne, applicable where the child's care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne v Payne is part. It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case

[145]   Accordingly, I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case 'a Payne case' or 'a Re Y case', nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application. The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered."

Per Moore-Bick LJ:

"[86] Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them.
It also plays a valuable role in promoting consistency in decision-making. However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child."

This approach to the use of Payne is equally applicable whether the court is concerned with an external or internal relocation. Put simply, there is nothing incompatible with the questions set out at paragraph 40 of Payne and the s1(3) checklist.


How to use Payne

Of course, it is fair to say that there is a "right way" and a "wrong way" to use Payne. The point is best illustrated by a comparative analysis of two cases, both of which (unhelpfully) are referred to as "Re F":

aRe F (Relocation) [2012] EWCA Civ 1364, [2013] 1 FLR 645 (hereafter Re F (Relocation) [2012]) - in which Munby LJ gave the judgment of the court, approving the way in which His Honour Judge Marston employed Payne; and

b. F (International Relocation Cases) [2015] in which Ryder LJ took the opposite view of the first instance decision.

Re F (Relocation) [2012] concerned an appeal brought against a decision to permit a mother to relocate with the child of the parties to Spain. The father alleged that the judge had been wrong to use Payne, as the mother was not the 'primary carer'. Munby LJ disagreed and, in giving the judgment of the court, said the following:

"[46]  In the present case, as we have seen, His Honour Judge Marston asked whether this is a case to which Payne v Payne applies. This invites the question: What is meant by a Payne v Payne type case? If the expression has any meaning at all, and if it is still of any use (a matter to which I return below), it means a case in which the applicant seeking permission to relocate is the child's primary carer. It is quite clear that in this sense the present case is not a Payne v Payne case. The applicant was the mother. She was not, although she had in the past been, the primary carer. The primary carer at the relevant time was the father. Equally, it is quite clear that the present case is not one of shared care, in the sense in which that expression was used in Re Y (Leave to Remove from Jurisdiction) and K v K (Relocation: Shared Care Arrangement).

[47]   This being so, and given his explicit reference to Payne v Payne, it is important to examine very carefully whether the use His Honour Judge Marston made of Payne v Payne, and in particular his application of Thorpe LJ's 'discipline', led him into error. The father submits that it did; Ms Renton submits that it did not. In my judgment, Ms Renton is correct.

[48]   It is important to note both what His Honour Judge Marston said and what he did not say. He did not ask himself whether this was a Payne v Payne case. The question which he asked himself was 'Is this a case to which Payne v Payne applies?' And the answer he provided is important: he 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 v Payne para [40]. He did not, for example, refer to Poel v Poel or to what Thorpe LJ had said in Payne v Payne at paras [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'. Finally, and in the light of that, he came to his overall conclusion.

[49]   In my judgment there was no error of law. Although this was not a case where the application was being made by the primary carer, His Honour Judge Marston was, for the reasons I have given, entitled to have regard to Thorpe LJ's 'discipline' as set out in Payne v Payne at para [40]. He correctly appreciated that the case had to be decided by reference to P's best interests. And, at the end of the day, that is precisely what His Honour Judge Marston did."

The reader will note (i) the differential treatment given by Munby LJ to [§40] of Payne compared with the Poel-type approach highlighted in [§26], [§32] and [§41]; (ii) the emphasis on the entitlement of the judge to 'look at' Payne as part of the overall welfare decision; and (iii) the approval of the approach employed by His Honour Judge Marston. 

That approach can be contrasted with the method adopted by HHJ Waddicor which was the subject of the successful appeal in F (International Relocation Cases) [2015]. The issue, as Ryder LJ identified on appeal, was the lack of a wider welfare analysis:

"[17] 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.  The caution expressed by Dame Elizabeth Butler-Sloss P in Payne  went unheeded, namely that guidance that had been derived from authorities such as Poel v Poel [1970] 1 WLR 1469 was being expressed in "too rigid terms" and 'unduly firmly' with an over emphasis on one element of the case.  I respectfully agree with her and with the benefit of hindsight the continued use of the Payne guidance by courts without putting it into the context of a welfare analysis perpetuated the problem.

[...]

[27] ... Selective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law. In particular, a judgment that not only focuses solely on Payne, but also compounds that error by only referring to the four point 'discipline' set out by Thorpe LJ at paragraph [40] of his judgment in Payne is likely to be wholly wrong.

[...]

[38] The judge's analysis, I am afraid, is so taken up with discussion of the four point 'discipline' that there is no clear identification of any overall welfare analysis. In particular at no stage does the judge take account of any erosion in the quality of the relationship between father and daughter if L were to move to live in Germany. High on the list of important questions should have been an evaluation of the harm, on the one hand, to L of leave being refused as against, on the other, the harm that would result from separation from her father should she move…"    

We submitted that the combined effect of these authorities is that the use of Payne is perfectly permissible so long as:

(i) it is as part of a wider welfare decision; and

(ii) undue weight is not given to the Poel-type approach, so "redolent with gender based assumptions as to the role and relationships of parents with a child".2

In Re C, Black LJ  agreed that reference to Payne was, and is:

"perfectly permissible where a judge finds it of assistance as part of his marshalling and/or analysis of the evidence before determining what the child's best interests require" [§62].

Both Vos LJ and Bodey J agreed:

"In my judgment, one of the valid concerns about the Payne factors is that they do not adequately reflect the gender-neutral approach to these problems that the court will now adopt in every case.  Whilst the Payne factors may still be of some utility in some cases, they are no part of the applicable test or the applicable principles.  In some circumstances, the judge may find them useful.  In others, the judge may not.  If the judge finds them a useful guide to some of the factors that he should consider, he will be doing so only as part of the multi-factorial balancing exercise that is required." [Vos LJ, §83]

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. [Bodey J, §85]

The Court ultimately accepted that the Recorder's use of Payne in Re C fell within the appropriate bounds and as such was not a ground for setting aside the judgment.


Proportionality

When assessing welfare, the effect of the proposed move upon each of the parents will always be a very important matter. But that is not the end of the story: regardless of the impact on the child, there will be implications for the parents themselves. Almost inevitably the decision will affect the right of one parent to freedom choose their own home, and may also disrupt the right of the other parent to a meaningful relationship with their child. A tension will arise and, whatever the court's decision, the rights of one party of the other will be materially affected.

The Court of Appeal in Re C sought to grapple with this difficult issue by considering the concept of proportionality, something raised by Ryder LJ in Re F [2015] as being relevant in international cases. Black LJ was of the view that the consideration of proportionality in private law cases is significantly more problematic than in public law cases, where the court is considering the right of the State to interfere in family life. However, s1 of the Children Act ultimately required the welfare of the child to take precedence:

"The interests of the parents are not ignored but, if it is not possible to accommodate everyone's wishes, the best interests of the child dictate the outcome" [§60].

63. This formulation was consistent with the jurisprudence of the ECtHR (see e.g. Nazarenko v Russia (Application no 39438/13) [2015] 2 FLR 728).

Both Black LJ and Vos LJ were clear that in considering proportionality the court should not attempt a separate, 'after-the-event' cross-check (as advanced by the father), but rather should bear in mind the principle as part of the holistic balancing exercise being conducted, so as to avoid the risk of confusing or disrupting the decision making process [see §61, §84], as we had advocated.

It is not difficult to see that, in real terms, proportionality is likely to have a role to play in what might be described as the 'de minimis' cases, where the move is local and the impact on the relationship with the 'left-behind' parent minimal or non-existent. Black LJ offered some observations on the variety of circumstances that might present, and the way in which applications might be received by the court:

"...At one end of the spectrum, it is not to be expected, for instance, that the court will be likely to impose restrictions on a parent who wishes to move to the next village, or even the next town or some distance across the county, and a parent seeking such a restriction may well get short shrift. At the other end of the spectrum, cases in which a parent wishes to relocate across the world, for example returning to their original home and to their family in Australia or New Zealand, are some of the hardest cases which the courts have to try and require great sensitivity and the utmost care..." [§54]

Her Ladyship further emphasised that the role of the court is to look for positive solutions, particularly with regard to the relationship with the left-behind parent:

"...One can see from the authorities, and indeed from this case, that the courts are much pre-occupied in relocation cases, whether internal or external, with the practicalities of the child spending time with the other parent or, putting it another way, with seeing if there is a way in which the move can be made to work, thus looking after the interests not only of the child but also of both of his or her parents. Only where it cannot, and the child's welfare requires that the move is prevented, does that happen."


Conclusion

In the concluding paragraph of Re C, Bodey J summarised the applicable principles as follows:

"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."

This pithy summary encapsulates very well the approach that the court should take to internal relocation cases in the future. It is to be hoped that the controversies that have surrounded the law on internal relocation will no longer be allowed to distract from what are invariably difficult, important and highly fact-specific decisions affecting many families that encounter the family justice system on a daily basis.

3/2/16 

______________

1 See the judgment of Munby J in Re F (Relocation) [2012] EWCA Civ 1364 [2013] 1 FLR 645 and of Ryder LJ in F (International Relocation Case)

2
 F (International Relocation Cases) [2015],  per Ryder LJ at §18