More clarification on 'modern' approach to relocation of children
16 February 2016
A father's appeal against a decision allowing a child to relocate from London to Cumbria with her mother which was dismissed is significant for both domestic and international leave to remove cases.
The decision of the Court of Appeal in the case of Re C (Internal Relocation) in December 2015 which concerned a mother's proposed move from London to Cumbria, with the 10-year-old child of the relationship, is of as much significance for international relocation/leave to remove cases, as it is for internal relocation cases, otherwise known as domestic relocation.
At first instance the judge (a Recorder) granted the mother's application on the basis that the proposed move which would involve a change of school as well as location would be in the child's best interests. He found that remaining living in London would be "much less conducive to C's well-being than... the move to Cumbria".
The father appealed to the Court of Appeal, arguing that the judge had erred in his application of the law to the facts of the case. The Court of Appeal unanimously dismissed the father's appeal. Lady Justice Black gave the lead judgement, with which Lord Justice Vos and Lord Justice Bodey agreed.
The Court of Appeal reiterated the following important principles in relation to child relocation cases:-
1) The only legal principle to be applied is that the welfare of the child is always paramount. This involves balancing all the relevant factors, one against another, to determine which of the available options best meets the child's best interests.
2) There is no additional rule in internal relocations that an internal relocation should only be interfered with in exceptional cases: in other words, the legal principles to be applied to both international and internal relocations are exactly the same.
3) Judges may (if they find it helpful) continue to make use of the judicial guidance in the case of in Payne v Payne (2001) - in both international and internal relocation cases - to help them identify the factors that are likely to be of importance in a particular case and the weight that should be attached to them, when determining the best interests of the child, but not so as to dictate a particular outcome.
4) Proportionality: the conflicting wishes and interests of each of the child's parents will always be relevant factors for the judge's consideration (particularly the impact the proposed move will have on the relationship between the child and the parent who is left behind), but as part of the holistic balancing exercise that must be conducted in every case, when considering the child's best interests, not as a separate crosscheck at the end of the balancing process. Where there is conflict between the child's best interests and the interests of the parents, the best interests of the child will dictate the outcome. As Lady Justice Black put it:
5) "the courts are much pre-occupied in relocation cases, whether internal or external, with the practicalities of the child's 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."
The Court of Appeal decision in this recent appeal case continues the important line of authority, clarifying the "modern" law of relocation of children, in the earlier Court of Appeal international relocation cases of K v K (International Relocation: Shared Care Arrangement) in 2011 , Re F (Relocation) in 2012 and Re F (International Relocation Cases) in 2015.
Maeve O'Higgins Family Law Partner, Burlingtons Legal |
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