If a single parent wants to relocate within the UK, they do not require the consent of either the other parent or the court. If, however, one parent opposes the other’s plans to relocate, either parent could make an application to the court.
The parent wishing to move would apply for a specific issue order and the parent wishing for the other to stay would apply for a prohibited steps order (prohibiting them from moving) or a Child Arrangements Order (setting out terms of residence and contact).
Below is a short summary of the relevant case law and the principles the court must apply in determining both internal (i.e. within the UK) and external (i.e. international) relocation cases.
If you wish to make or oppose an application of this nature then we can help, from providing the initial advice, guiding you through the Court process and presenting your case in the strongest possible way.
Welfare of the child
Historically, internal relocation cases and external relocation cases had been kept separate and courts appeared to approach them differently, but the Court of Appeal has made it clear in the case of Re C that there is no difference in the basic approach between the two. The decision in either type of case hinges ultimately on the welfare of the child, as this is the court’s paramount consideration and the governing principle in these types of cases.
The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but only in the context of evaluating and determining the welfare of the child.
Despite the court appearing to suggest that a relocation request would be refused only where there were exceptional circumstances in a separate case, the court in the case of Re C confirmed that there is no rule that moving a child within the UK could only be prevented in exceptional cases. Whilst a court would be resistant to prevent a parent from exercising their choice as to where to live in the UK unless the child’s welfare required it, that was not because of an exceptionality rule, but because the welfare analysis led to the conclusion.
In either type of relocation case, a judge is likely to find helpful some or all of the considerations referred to in Payne v Payne, but not as a prescriptive blueprint, rather and merely guidance as to the sort of factors which might need to be weighed in the balance when determining which decision would better serve the welfare of the child. Guidance from Payne will help to identify the likely important factors, but will not be applied rigidly.
The following considerations were raised in Payne:
- Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask, is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.
- If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition:
- Is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
- What would be the extent of the detriment to him and his future relationship with the child were the application granted?
- To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
- What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
- The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration.
In Payne v Payne the judge was careful not to diminish the importance that the court has consistently attached to the emotional and psychological wellbeing of the primary carer and it was confirmed that, in any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.
Welfare of the primary carer
In the case of Re C, the mother wished to move from London to Cumbria with the her 10 year old child. The judge accepted that if the mother was forced to stay in London she would feel deeply unhappy and he found that her feelings were likely to have a serious and very harmful impact on the child. He considered that the relationship between the child and the father was sufficiently well-established to continue as it was, even if the quantum of contact changed and that the parents’ relationship would inevitably deteriorate if the mother was unable to move. The mother was permitted to move to Cumbria and it was the child’s (and the mother’s in so far as they were relevant) best interest that dictated the outcome.