The Challenges of Relocation: determining the welfare of the child

19 March 2019

In this article Benjamin Pitman, a trainee solicitor, discusses the challenges of relocation and the court's emphasis on putting the welfare of the child first.

As comes with the territory, there are many difficult cases that come before the family courts. The most challenging of which are where emotions run high and compromise is either unlikely or unworkable. Unfortunately, these are often key characteristics of relocation cases.

An international relocation case can broadly be described as, one parent wishing to move abroad with their child, against the wishes of the other parent. Whilst one parent may feel there is good reason to relocate abroad, such as a desire to be closer to their family support network or if there is a new employment opportunity outside of the UK, the other parent may however harbor a deep concern that such a move may dilute his or her relationship with the child.

Unsurprisingly, there are a number of hurdles for a parent wishing to relocate. At first instance the parent who wishes to move should try to obtain the consent of the other parent. Many parents are surprised to learn that it is a criminal offence to remove a child under the age of 16 from the UK without the consent of every person who has parental responsibility, unless there is a child arrangements order in their favour, directing that the child is to live with them.  In those circumstances they can remove the child for up to one month.

Where the relocating parent is unable to obtain the necessary consent, the only remaining legal solution is to make an application for a specific issue order to obtain a court order granting permission to relocate the child abroad.

However, the courts will not grant permission to relocate abroad without good reason. Any application is likely to be opposed by the other parent. Against this background, we will review below what factors the court will consider when assessing an application to relocate abroad.  

Payne v Payne   

One of the leading authorities on relocation cases was the court of appeal decision in Payne v Payne [2001]. This case confirmed the factors that should be considered in an international relocation case. These are as follows:

  • the welfare of the child is always paramount
  • there is no presumption created by s 13(1)(b) in favour of the applicant parent,
  • the reasonable proposals of the parent with a residence order wishing to live abroad carry great weight,
  • consequently the proposals have to be scrutinised with care, and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end,
  • the effect upon the applicant parent and the new family of the child of a refusal of leave is very important,
  • the effect upon the child of the denial of contact with the other parent and in some cases his family is very important,
  • the opportunity for continuing contact between the child and the parent left behind may be very significant.

These factors, however, received heavy criticism in the years that followed the Payne decision. Firstly, for placing too much weight on the wishes and feelings of the relocating parent. Secondly, for placing too little emphasis on the negative effect relocation can have on the relationship between the child and the parent left behind.

It is also of note that the decision places great emphasis on the fact that the applicant was the mother and primary carer, with the father having little contact. In the 18 years since this decision, there has been greater diversity in post-separation care arrangements. As such, this emphasis may now be less appropriate.

Keeping the child the priority

Following criticism of the guidance in Payne v Payne, it was later recognised by the court of appeal in the case of Re F [2015] that the Payne guidance is "redolent with gender-based assumptions as to the role and relationships of parents with a child' and that "elective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law".

The court of appeal gave its view on the correct approach for courts to take in relocation cases. In Re F [2015] it stated that the courts should take a holistic approach, which looks at and compares all the available options from the perspective of a child's welfare.

The court of appeal in Re C [2015] provided further clarity in relation to what factors should be considered when determining any decision made in an international relocation case. It confirmed that:

  • any decision in a relocation case, be it relocating abroad or to another part of the UK, hinges ultimately on the welfare of the child,
  • the wishes and feelings of the parents are relevant only in the context of evaluating and determining the welfare of the child,
  • it may be helpful, although not essential, to consider some of the factors laid out in Payne.  

It is now clear that any parent wanting to relocate, internationally or domestically should put forward to the court plans which have the child's welfare as the primary consideration.

Future uncertainty

Whilst the law in this area has been clarified over recent years, some are concerned that there will be fresh uncertainty regarding the practicalities and logistics of any international relocation case to a European Union country, following Brexit.

At the time of writing, the conditions of the United Kingdom's withdrawal from the European Union are unclear. The courts have previously refused to consider the effect of the United Kingdom leaving the European Union in its decisions.  Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ stated that "there was no sound basis on which courts could factor in, the hypothetical possibility that an EU national's immigration position might at some future point become precarious". Accordingly, we will have to wait and see what logistical impact Brexit will have on international relocation cases to a European Union country.

Benjamin sums up: Whilst there is potential for future logistical uncertainty following Brexit, it is now clearer than ever the factors the court will consider in a relocation case. At the heart of any application or opposition to an international relocation case should be a thoroughly prepared plan which places the welfare of the child as the paramount consideration.

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