Internal Relocation - The Custody Minefield

Internal Relocation

We recommend you visit our campaign website www.relocationcampaign.co.uk and download our Parliamentary Briefing Report. This calls for improved legislation to better protect child welfare in relocation cases. Also, refer to the case law page, and shared care research pages which may provide information to support your arguments before the court.

One of the hardest set of circumstances for parents and the court is where one parent seeks to move some distance from the other, and the move will disrupt the relationship and/or time that the child(ren) spend with their other parent.

If the parent wishing to move has sole residence, they do not normally have to seek the court's permission to do so, although the practicality of arrangements set down in any existing contact order may make an application to the court necessary to vary the contact pattern. In such circumstances, the non-resident parent may have chosen to apply to the courts for a prohibitive steps order (to prevent the move) and/or have applied for residence (so that the child will come to live with them, should the other parent carry through their plan to move).

A number of choices are available to the parent seeking to prevent their child from moving:

Accept that the children will move, and seek a contact order which ensures that lost parenting time is made up through an increase in holiday time (as seen in the case law Re: F) or weekends (if practical).
Apply for shared residence with midweek parenting time so as to make the move impractical (as seen in the case Re T, although it should be noted that in that case, there was a pre-existing shared residence order);
To apply for sole residence.
To apply for shared residence, with the child spending term time with themselves, and residing with the other parent during school holidays.
We would always urge that before heading to court, parents enter mediation.

The preferred choice and its possibility of success is dependent on the parents' individual circumstances. Of the four choices, it is my opinion that the court will be least likely to favour option 2, as this restricts one parent's movement.

With regard to options 1 and 4, it is worth noting the judgment in Re F and the comments by Lord Justice Thorpe and Lord Justice Wilson on the subject of shared residence over distance:

'The judge's approach is in my opinion founded on sound principle. As this court has said recently, a shared residence order must reflect the underlying reality of where the children live their lives. The fact that the parents' homes are separated by a considerable distance does not preclude the possibility that the children's year will be divided between the homes of the two separated parents in such a ways as to validate the making of a shared residence order. This case is a good example of how, in reality, the order expressed by the judge, in providing for the continency that the mother moves to Scotland and the father remains in England, results in a routine that sees the firls established in an Edinburgh home during the school terms times, and in a Hampshire home during the school holidays. My Lord has worked out the extend to which the mother's half share of the main school holidays will be eroded if the father foregoes much of his term time weekend contact. In reality the mother will be paired down to her irreducible minimum of 12 days. That ensures that the children will have their father's home as their home during school hald terms and almost all the school holidays' - Lord Justice Thorpe
'But like my Lord, I consider it perfectly apt to say, without stretching language, that, were the girls to spend term-time with the mother in Edinburgh and all half-terms and almost all school holidays with the father in Hampshire, they would have the benefit of residence with each parent in each of the homes.' - Lord Justice Wilson

Few would argue that a primary carer's wish to move with the children is unlikely to be denied (in light of existing precedents) unless there are compelling reasons to do so. These would include the primary carer's wishing to diminish the relationship between the child and the child's other parent through geographic distance, if their plans were impractical or ill-conceived, if the child is of sufficient maturity to understand the implications of the move (is Gillick Competent) and does not wish to, or if there are serious welfare considerations.x

When the case comes to court, there are conflicting human rights issues to consider:

The primary carer's right to freedom of movement;
The parents' right to family life;
The child's right to family life, and a full relationship with both parents;
The child's welfare needs.

While parental human rights are important, any decision of the court must be based on what is in the child's best interests. This and other matters must be considered:

The child's welfare, as in all Children Act applications, should be the court's paramount consideration;
The Welfare Checklist (section 1(3) of the Children Act 1989) must be considered, and not least, the child's wishes.
Both parent's motives should be considered. Is the parent who wishes to move motivated by a desire to reduce or undermine the relationship between the other parent and their child? Does the parent who wishes to prevent the move, motivated by a desire to control their ex-partner? Are their motives genuine in that they considering the child's best interests, or are their motives selfish or malicious?
Does the parent who seeks to move have realistic, well researched and practical plans? Most importantly, are their childcare plans well thought through?
What will happen if the court rules that the child remains in their current locality, and their primary carer moves? Does the other parent have realistic and practical childcare plans?
What are each parents' contact proposals for the other parent, and are these practical?
Which parent is most likely to promote contact, and have there been historic difficulties regarding contact?

The above points mirror those that a court must consider in international leave to remove cases. They are often referred to as hurdles that the parents should be expected to satisfy when presenting their case. That said, in an international leave to remove case, the hurdles are higher, in that the impact on all concerned and risks presented by the move are greater. Once the child has left the UK court's jurisdiction, problems over contact and non-compliance with orders are typically beyond the UK court's control.

There are other factors which may be considered when a court reaches a judgment, and each case will have its own peculiarities. Is the moving parent 'heading home'? Are there any mental health or addiction problems concerning either parent? Does the child have any special needs which one or other of the parents can better meet in their preferred location? Are relationships with the extended family to be considered? What is the strength of family support in each location?

Psychological harm to the primary carer if their application is refused

One argument in favour of a relocation proceeding is given considerable weight in both internal relocation and leave to remove cases, and this is 'the likely psychological harm that the primary carer will suffer should their application be refused'. In judgments which provide the authorities on these matters, the primary carer is referred to as 'her', being the mother.

In the case Re S and Payne v Payne, Lord Justice Thorpe comments that such opinions have been held in relocation caes for 30 years. Unsurprisingly, most of the mothers I know find this opinion at best outdated, at worst patronising, caricaturing them as emotionally fragile, while deeming the father, as a male, to be better placed to cope with disappointment.

It is arguable that, should a parent lack the emotional stability to cope with a court's refusal of their application, would they have sufficient emotional stability to provide consistent childcare when faced by other stresses in life?

In the case Re B (A Child) [2007] EWCA Civ 1055, Lord Justice Thorpe who gave the leading judgment (in that case), made reference to a legal guide on the subject of international relocation by Professor Lowe, entitled 'International Movement of Children' (Jordan Publishing Ltd, 2004)[1]. He endorsed Professor Lowe's conclusion that:

'a primary carer faced with an application for a prohibited steps order or the imposition of conditions on a residence order, will not, save in an exceptional case, be restrained by the court, because for the court so to do would be an unsustainable restriction on adult liberties and would be likely to have an adverse effect on the welfare of the child by denying the primary carer reasonable freedom of choice.'

This passage supported Lord Justice Thorpe's own view from 2001 in the case Payne v Payne which remains the leading judgment for international leave to remove cases. Lord Justice Thorpe stated:

26. In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:

(a) the welfare of the child is the paramount consideration; and
(b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.

It is worth noting two things. The first is that Professor Lowe is a professor of law, and not psychology. The second is that, to my knowledge, there is no psychological study that supports his or Lord Justice Thorpe's opinion. More concerning is that there is no shortage of studies that confirm that a child's welfare is adversely effected when deprived of one parent, or where time with one parent is suddenly changed. The court pays too much attention to an unqualified and somewhat historic opinion, and not enough to arguments which are supported by considerable research.

Consider four studies published in recent years. I have placed an emphasis on the parts of the research that relate to fathers, and have done so since, in court, it is rare that one has to produce an argument that mums are important. The research clearly supports that fathers have an equally essential role (as do mothers), and deprivation of a father causes harm. It may not be a fashionable view in our current society, but it is one supported by psychologists and educational professionals:

a) The February 2009 Children's Society Report based on the experiences of 30,000 children found that 'a child's performance at secondary school, self-esteem and well being as an adult is linked especially to the father's input' and 'children are 40% more likely to suffer mental health problems when separated from their fathers' and 'On average, children are less likely to fail at school or suffer depression the more they see their separated father.'
b] The 2003 Department for Education and Skill's own research which concluded 'Fathers play an extremely important role in their children's lives and a plethora of research indicates that father involvement is significantly related to positive child outcomes' and 'Father involvement in children's education at age 7 predicts higher educational attainment by age 20, in both boys and girls.'
c] The report by the University of British Columbia published in December 2008 entitled 'Child Custody, Access and Parental Responsibility' found that 'Sole maternal custody often leads to parental alienation and father absence which is associated with negative child outcomes.' The research discovered that '85% of youth in prison are fatherless', '71% of high school dropouts are fatherless', '90% of runaway children are fatherless', 'and fatherless youth exhibit higher levels of depression and suicide, delinquency, promiscuity and teen pregnancy, behavioural problems and illicit and licit substance abuse.' Equally as concerning were the findings of these and a wide range of other reports that concluded 'These studies found that fatherless youth are more likely to be victims of exploitation and abuse, as father absence through divorce is strongly associated with diminished self-concepts in children (Parish 1987).' Not much has changed since 1987, and indeed, in the area of internal relocation and leave to remove and as Lord Justice Thorpe states, the court's attitude has remained unchanged for 30 years, as have the outcomes for children.
d] 'Children in joint custody arrangements fare significantly better on all adjustment measures than children who live in sole custody arrangements' [Bauserman 2000]
e] The 2007 Unicef Report into Child Wellbeing found the UK to have the unhappiest children in the developed world.

It is time that the precedents set by Poel v Poel and Payne v Payne (in leave to remove cases) which continue to influence court decisions in internal relocation cases (as seen in the cases Re S and Re B), were revisited. Legal opinion needs to be based on expert evidence, and to take account of educational, psychological and social research findings. To do otherwise flies in the face of the paramountcy principle (that child welfare must be the court's paramount consideration).

In a recent international leave to remove case, Re W, the trial judge challenged counsel's argument that the mother would be adversely affected should her application be refused. The Judge pointed out that there was no evidence to suggest that the mother would suffer any more than disappointment, and refused her application. The mother appealed the decision, and her counsel criticised the Judge for his view. In the Court of Appeal, Lord Justice Wall found that the Judge was entitled to reach that conclusion based on the evidence before him.

The Judge in Re W, on the matter of the impact of refusal on the mother, had said:

28. It is a very important consideration. I have to say that I have no medical evidence of significant depression. I heard the mother come back when she was re-called and say that she was suffering and would suffer more if I turned her down. Mr Rowlands put it well when he said there will be very great unhappiness as a result of my decision one side or the other. The father also has had to have some medicaments for depression. It is not a case where I am able to say that the mother will be so savagely or severely damaged that this will get through to the children. She will be disappointed but she will have to consider what she can best do to overcome it if I turn down her application.

Re W is an important case. The trial judge was right that the psychological impact on the primary carer is important, but simply one factor among others of equal and arguably greater importance. Like any argument, there needs to be evidence to support it. 'The psychological impact on the primary carer' mantra should not simply be an unsubstantiated trump card in a barrister's deck.

Consideration should also be given to the increasing reality in many arrangements where both parents are primary carers or significant carers of the child(ren) in arrangements under shared residence orders and where contact orders exist (but no order regarding residence has been made, or where there is sole residence). Nursery/child-minder use by primary carers and/or in combination with school and the use of pre-school and after school clubs can often result in the reality of the parenting time of a primary carer being hardly different to the so called non-resident parent.

The strength of the relationship between children and a non-resident parent can be equally as strong as that of the primary carer, and research confirms that the disruption to or diminishing of that relationship carries welfare risks to the child.

Promoting contact with the other parent

In the leave to remove case M v H [2008] EWCA 324 (Fam), the "most significant factor" was each parent's willingness to promote contact between the child and their other parent. The child remained in England with the father. There had been historic problems over contact, and while both parents' behaviour was less than ideal, the father was deemed more likely to promote contact. It should also be noted that the mother had previously sought to mislead the court.

In the case B v B (Residence: Condition Limiting Geographic Area) [2004] 2 FLR 979, the mother's willingness to mislead the court and father on a number of very serious issues was a key factor in the relocation being prevented. It is more likely in the current climate, that a solution seen in Re T, or residence being granted to the father would be the court's preferred outcome rather than a residence order with restrictions.

Judgments in Internal Relocation Cases

The court has a number of options when deciding the outcome of a leave to remove case:

award residence to the parent who wishes to move,
award residence to the parent who wishes the child to remain in the locality;
award shared residence, although this may be within an order which grants or prevents the child from moving;
set out a contact pattern or grant parenting time which makes a move impossible (as in the recent case Re T);
impose conditions within a residence order setting out where the resident parent can live (as in the case B v B).

Restrictions on Residence Orders

Section 11(7) of the Children Act 1989 allows for conditions to be included in residence orders. However, in the case Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, Dame Elizabeth Butler-Sloss, when she gave the leading judgment (in that case), said:

Section 11(7) applies to all four section 8 orders, including prohibited steps orders and specific issue orders. The wording of the subsection is wide enough to give the court the power to make an order restricting the right of residence to a specified place within the UK. But in my view a restriction upon the right of the carer of the child to choose where to live sits uneasily with the general understanding of what is meant by a residence order.

In 2007 in the court of appeal and in the case Re B (A Child) [2007] EWCA Civ 1055, Dame Elizabeth Butler-Sloss's earlier guidance was upheld.

In Re D (Minors) (Residence: Imposition of Conditions) [1996] 2 FLR 281, Lord Justice Ward said:

'The court was not in a position to overrule her decision to live her life as she chose. What was before the court was the issue of whether she should have the children living with her.’

In his guide, Professor Lowe states:

‘The correct approach, therefore, is to look at the issue of where the children will live as one of the relevant factors in the context of the cross-applications for residence, and not as a separate issue divorced from the question of residence. If the case is finely balanced between the respective advantages and disadvantages of the parents, the proposals put forward by each parent will assume considerable importance. If one parent’s plan is to remove the children against their wishes to a part of the country less suitable for them, it is an important factor to be taken into account by the court and might persuade the court in some cases to make a residence order in favour of the other parent.’[1]

The court clearly favours resolving internal relocation cases by deciding with whom the children should live (although as seen in the more recent case Re T, the issue was resolved via a shared residence order with the parenting schedule determining that the father provided midweek care, and this prevented the relocation).

Imposition of restrictions on residence orders are still possible in exceptional circumstances, although the likelihood of a successful appeal makes it something that most judges would view with extreme caution. It should be noted that any restrictions should be on where the child, and not the parent lives (although such an outcome may well impact on where the parents choose to live).

In Summary (and our interpretation of the current authorities)

If the Court decides that a relocation should not proceed, it is unlikely to favour making a Prohibited Steps Order or Residence Order with conditions as to where the primary carer should live. Rather, the Court is likely to make an order either granting sole residence to one or other of the parents, or a shared residence order specifying when the child(ren) should reside with each parent.

A parent's right to live where they want carries considerable weight, and the court is unlikely to stop them from moving, although may, based on child welfare considerations and the plans and motives of the parties, decide that it is not in the child's best interests to relocate.

There is finally case law which challenges the argument that denial of their request to relocate with the children will cause the parent seeking to move psychological harm which is so severe that it will impact on their care of the children. Evidence which either supports or opposes that argument should be put forward by the parties to support their case.

The court is unlikely to deny a primary carer's wish to relocate, unless there are strong welfare grounds to do so, or if it can be shown that their motives and/or plans are unreasonable or unrealistic.

If you become aware of case law or have experiences within court which contradicts or would amend the information provided on this webpage, please email details to the address below. We would ask that copies of published judgments be included. If your judgment was not made public, we would ask you not to divulge any information which would identify the children concerned: enquiries@thecustodyminefield.com

1. International Movement of Children (Practice and Procedure), Nigel V.Lowe, Mark Everall, Michael Nicholls (Jordan Publishing Ltd, 2004)