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No summary return for children relocated within England and Wales

01 November 2016
The Court of Appeal has clarified that there is no general principle that a child should be summarily returned to the place where he or she was formerly resident, if he or she is unilaterally removed by one parent from his or her home in one part of England and Wales to another part of England and Wales.

The clarification was delivered in the recent Court of Appeal case of Re R (A Child)[2016] EWCA Civ 1016. 

The parents had been living together since 2013 in Kent, where their son was born in June 2015. In January 2016, the mother left the family home with the child (then 7 months old) without the father's knowledge or consent. She moved to the North-East, initially to live with her parents and then in her own accommodation in the same area. Having been informed by the father's solicitors that the father intended to apply for an order seeking the child's return, the mother obtained a without notice prohibited steps order, preventing the father from removing the child from her care, and the father then issued a cross-application, seeking the return of the child to the family home in Kent, saying that he would live separately.

Both applications were heard together before a District Judge, in February 2016. The District Judge made his decision by applying the welfare principle and having regard to the welfare checklist, in the usual way. He particularly considered the disruption caused to the child by the move to the North-East but was concerned about further similar disruption to the child by another and possibly further moves. He did not not feel that a possible medical condition of the child required him to live in Kent. He also took account of concerns raised by the mother about the father's abusive behaviour which he found caused her to be fearful (which allegations were disputed by the father). He dismissed the father's application for an order which would require the mother to return to Kent with the child and refused to transfer the proceedings to a court in Kent. It was agreed between the parents that their child should continue to live with his mother whilst the proceedings were going on and the order made provision for the father's contact with the child.

The father appealed to Judge Heaton on 15 March 2016, who dismissed his appeal. He held that the District Judge was right to have determined the cross-applications by the application of the welfare principle. He noted that the District Judge had considered each of the relevant matters from the welfare checklist carefully and set out his thinking on them.

The father then obtained leave to bring a further appeal to the Court of Appeal. His central argument was that the courts should adopt the same approach in internal relocation cases, where a child is unilaterally relocated by one parent from his usual place of residence to another part of England and Wales, to the approach taken in international child abduction cases, i.e. there should be summary return of the child to the place where he was formerly resident so that the issues regarding his upbringing could be decided by the local court there.

He sought to base his argument on the Court of Appeal decision in Re C (Internal Relocation) [2015] which established that there is no difference in the approach to be adopted to internal and in external/international relocation cases, i.e. that the child's welfare is the paramount consideration and "with the assistance of the welfare checklist, all the relevant factors are weighed in the balance with the objective of determining which of the available options best meets the child's welfare" (Lady Justice Black).

The father's further appeal to the Court of Appeal was dismissed. Lady Justice Black (who has featured in a number of the recent important Court of Appeal decisions about internal and external relocation), with whom Lord Justice Floyd and Mr Justice Baker agreed, delivered the judgement of the Court of Appeal.

The decision is important because Lady Justice Black made it clear that the decision in Re C did not represent a sea change in the law, which required a new approach to cases where one parent unilaterally removes a child from their home to another location in England and Wales. She was equally clear that there is no general principle that summary return to the place where the child was formerly resident should follow such a move in the absence of good welfare reasons why that should not happen. Just as in the usual type of internal relocation cases, the child's welfare is the paramount consideration in proceedings that result from a unilateral move of the kind that took place in this case.

As Lady Justice Black put it: "it is by the application of the welfare principle and the use of the welfare checklist that the outcome is decided … ... What matters is for the judge to take a careful look at all the information available to him or her and then to fulfil his or her task of weighing all the relevant factors in the balance in determining what order will best serve the child's interests. Sometimes, the right order will be to return the child immediately to where he or she was living before his or her parent took him or her away, so that normal life can be speedily resumed whilst the future is sorted out. Sometimes, the right course will be to leave the child where he or she is until matters can be investigated further."

Finally, she made it clear that supplementary principles or presumptions devised by the courts should be avoided, as they can distract from the core principles in the statute and restrict the ability of the courts to respond flexibly and achieve what is in the best interests of the child. In each relocation case the appropriate outcome will depend on the individual facts of the case. She also gave short shrift to the father's supplementary argument, that the District Judge had erred in his welfare decision, by placing too much weight on the mother's untested evidence about her alleged fears about returning to Kent and insufficient weight on the fact that the child's home had been in Kent, from where he had been abducted by the mother. She held that the District Judge had been entitled to take the mother's allegations into account, even though they had not been adjudicated upon, and to conclude that moving back to Kent might have an adverse impact on the mother and therefore on the child. Hence there was no justification for interfering with the District Judge's decision.

The case continues the line of "modern" authorities, post Payne, emphasising the paramountcy of the welfare principle to determine the outcome of relocation cases, whether internal or external.

Maeve O'Higgins Family Law Partner, Burlingtons Legal | Email: maeve.ohiggins@burlingtonslegal.com, Tel: +44 (0) 207 529 5420

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