Internal Relocation Case Law Summary

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© Michael Robinson of The Custody Minefield 2010. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.

E (Residence: Imposition of Conditions) [1997] 2 FLR 638, CA - download

After determining with whom a child should live, the imposition of a condition of where the primary carer should live was an unwarranted imposition. The court of appeal overturned the part of the earlier judgment which imposed conditions on where the mother could live.

Re S (A Child) [2001] EWCA Civ 847 - download - <Back to Top>

The child in question had special needs, and would be adversely impacted by change and her contact with her father reduced. This was supported by expert evidence.

Restrictions were placed on where the child should live (not the parents).

It confirms that there is not an absolute prohibition on conditions on residence being made.

The appeal was allowed because there had not been sufficient attention paid to the impact on the mother of having to stay in Croydon (as opposed to her wish to move to Cornwall).

Re F (Children) [2003] EWCA Civ 592 – download - <Back to Top>

A shared residence order may be made, even when parents live considerable distance apart (in this case, England and Scotland) so long as the children divide their time between two homes (this does not mean the equal division of time).

B v B (Residence: Condition Limiting Geographic Area) [2004] 2 FLR 979 - <Back to Top>

The mother's willingness to mislead the court and father on a number of serious issues was a significant factor in her application being refused.

Re G (Children) [2006] UKHL 43, [2006] 2FLR 629 - <Back to Top>

The Court was concerned with which of two lesbian parents was the primary carer and the impact of only one parent being a biological parent (the father was an anonymous sperm donor). During proceedings a condition of residence prevented the biological mother from moving from Leicester to Cornwall.

Re E (Shared Residence: Financial Relief: Yardstick of Equality) [2006] 2 FLR 1228 - <Back to Top>

If the Judge finds that it is doubtful as to whether relocation is in the interests of the children, the court will then need to consider whether it would be preferable to attach conditions to any residence order (shared or otherwise).

Re B (A Child) [2007] EWCA Civ 1055 - download - <Back to Top>

A primary carer will not, save in exceptional cases, be restrained by the court as to where they may live. Lord Justice Thorpe held the view (as he did in the case Payne v Payne), that restrictions on the primary carer would adversely affect them, psychologically, which would impact on their care of the child and therefore the child's welfare.

M v H [2008] EWCA 324 (Fam) - download - <Back to Top>

The relocating parents' willingness to promote contact between the child and the other parent was a significant factor in the court's decision.

Re T (A Child) [2009] EWCA Civ 20 - download - <Back to Top>

A Shared Residence Order is not an 'automatic bar' to relocation, but is an important consideration. Wall LJ stated: “In each case, what the court has to do is examine the underlying factual matrix, and to decide in all the circumstances whether or not it is in the child’s interests to relocate with the parent who wishes to move”. This was the first case to 'hit the courts' involving an application for internal relocation where there was an existing shared residence order.

Reasons for refusal of parent's application to move in this case were:

• In previous proceedings there had been attempts to relocate internationally by the mother which had similarly been dismissed, whereupon the Shared Residence Order had been made.
• The father maintained that the move was contrived, and was intended to disrupt his relationship with their child.
• The Judge found that the mother's motive for the move was to undermine the existing shared residence agreement.

• Midweek parenting time was granted by the trial judge (there was an existing Shared Residence Order) as a resolution to and dismissal of the mother's application to relocate from London to Somerset.
• Where shared residence exists, or where a case is finely balanced, the child's welfare must be the court's paramount consideration.

F (Children) [2010] EWCA Civ 1428 - download - <Back to Top>

Appeal dismissed. While the authority exists within Re E that exceptional circumstances must be shown prior to the court refusing a parent's wish to relocate with the children which the courts are bound to consider, at paragraph 26 of the judgment, LJ Wilson questions whether the 'exceptional test' casts an impermissable gloss on the welfare test required by section 1(3) of the Children Act (the welfare checklist e.g. considerations as to the children's welfare which would be affected by the application).

The correct application by a parent objecting to a relocation is one for a Prohibited Steps Order.

The trial judge was right to consider that the upheaval from the move would cause the children emotional harm given the circumstances of the case. The children expressed differing views on the move.

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