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Court of Appeal clarifies law on internal relocation

The only principle is that the child’s welfare is paramount

The Court of Appeal has clarified the law in relation to internal relocation, that is when one parent seeks to move with their child to another part of the United Kingdom, and the other parent objects.

The existing law had suggested that a left-behind parent might have to demonstrate 'exceptional circumstances' in order to prevent a move, a test which does not apply in international cases. In dismissing the father's appeal, the Court of Appeal confirmed that there is no distinction between the two 'categories' of case, and that the only principle to be applied in either situation is that the child's welfare is paramount.

Giving the lead judgment in Re C (Internal relocation) [2015] EWCA Civ 1305, Lady Justice Black said:

"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… I would not interpret the cases as imposing a supplementary requirement of exceptionality in internal relocation cases."

Her Ladyship emphasised that the distance that a parent wishes to move will always be important, as will the practicalities of the child spending time with the left-behind parent:

"…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…

"…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."

Emma Hatley, a Partner in the Divorce and Family Department at Stewarts Law LLP and who represented the mother in the Court of Appeal, said:

"Achieving practical solutions for parents can be extremely challenging where one party wishes to move away with the child following separation. Each family member has rights to assert and in balancing them the court must adhere to the paramount principle of child welfare.

"This landmark judgment will have significant ramifications for future applications concerning the relocation of children both within the UK and internationally."

Charles Hale QC of 4 Paper Buildings (instructed by Penningtons Manches LLP) represented the appellant. Deborah Eaton QC and Stephen Jarmain both of 1 King's Bench Walk (instructed by Stewarts Law LLP) represented the respondent. Damian Garrido QC and Dr Rob George both of Harcourt Chambers (instructed by Dawson Cornwell) represented the Intervener, the International Centre for Family Law, Policy and Practice.

The judgment is here.

20/12/15 (amended 21/12/15)