Following separation, parents are faced with many decisions regarding their children. One of those decisions may involve the relocation of a parent and the child(ren). If within the UK this is known as internal relocation, if outside the UK this is known as external relocation. The basic approach to both internal and external relocation is the same.
The court will conduct a holistic balancing exercise aiming to strike a balance between the parent with primary care who wishes to relocate, the impact the move will have on the child and the child’s relationship with the parent left behind. The principles of welfare and proportionality will be applied to the case. The rights of the parties to a case and the child, to the right to private and family life, under Article 8 of the European Convention on Human Rights should be considered when evaluating proportionality. However, the overarching principle found in section 1(1) of the Children Act 1989 is that the child’s welfare is paramount ie what is in the child’s best interests.
In the latest relocation case Re C (Internal Relocation) (2015) EWCA Civ 1305 the court reiterated that it is primarily concerned with welfare and welfare alone. The Payne v Payne considerations are helpful as a checklist to help balance what is in the child’s best interests. However, those considerations are guidance only and do not constitute a legally binding principle as every case is different and must be considered on its own facts.
In Re C the court followed the principles set out in Re F  EWCA Civ. 1364 and TC v. JC (Children: Relocation)  EWHC 292 (Fam):
- The welfare of the child is paramount and overbears all other considerations
- The court is likely to find some or all of the Payne v Payne guidance helpful when determining which decision would better serve the welfare of the child.
- The guidance is not confined to primary carer applications and may be used in other kinds of relocation cases.
If your ex-partner/spouse is intending to relocate with your child(ren) there are ways to object to such a move:
- Apply for a Prohibited Steps Order (PSO) to prevent the other parent relocating under section 8 of the Children Act 1989. In Re F (A Child) EWCA Civ 1428 the court suggested that a PSO was the correct way to object to a child’s relocation rather than a section 11(7) condition (see below).
- Apply for an imposition of a condition on a Child Arrangements Order (CAO) under section 11(7) of the Children Act 1989. This can be used to prevent the internal relocation of the parent who is the primary carer of the child(ren) as relocation would prove detrimental to the CAO/contact order that is in place. Generally, the parent with primary care of the child(ren) by way of a CAO should be able to choose where to live. The court will only interfere with this right in exceptional circumstances where there is a need to protect the welfare of the child. Again, the child’s welfare is paramount.