Internal Relocation
The Custody Minefield Factsheets –
Smartphone Series (optimised for smartphone users). Copyright Michael Robinson
2010, 2011. Crown Copyright
material is reproduced with the permission of the Controller of HMSO and the
Queen's printer for Scotland.
Human Rights and other
considerations
Psychological harm to the primary carer if their
application is refused
Research Supporting
Co-Parenting
Evidence and the Distress
Argument
Judgments in
Internal Relocation Cases
Restrictions
on Residence Orders
In
Summary (and our interpretation of the current authorities)
See also our separate smart phone
sheet on Internal
Relocation Case Law Summaries.
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 relocate with the children, 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).
The
objecting parent's choices <Back
to Top>
A number of choices
are available to the parent seeking to prevent their child from moving:
The preferred
choice and its possibility of success is
dependent on the parents' individual circumstances.
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 relocate, or if
there are serious welfare considerations.
Shared
Residence over distance <Back
to Top>
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 (where the
mother relocated from Hampshire to Scotland, and the court agreed that the
children relocate but also made a shared residence order):
'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 contingency that the mother
moves to Scotland and the father remains in England, results in a routine that
sees the girls 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
extent 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 half 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
Human
Rights and other considerations <Back to Top>
When the case comes
to court, there are conflicting human rights issues to consider:
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 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 <Back
to Top>
One argument in
favour of a relocation proceeding is given considerable weight in both internal
relocation and leave to remove cases (relocation abroad), and this is 'the likely psychological harm that the primary
carer will suffer should their application be refused and the belief that this
will cause harm to the children'. 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 cases for 30 years.
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 are no shortage of studies
that confirm that a child's welfare is adversely affected 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.
Research
Supporting Co-Parenting <Back to Top>
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]
There is much
disagreement over the precedent from case law which governs relocation cases
(notably Poel v Poel and
Payne v Payne) which undoubtedly continue to
influence court decisions in internal relocation cases (as seen in the cases Re
S and Re B). Legal decisions should ideally be based on expert evidence but
often aren't, and educational, psychological and social research findings are
too often ignored. Sadly, the courts continue to be bound by guidance in external
relocation cases which many consider out-of-date (too much weight is given to
the relocating parent's feelings and wishes rather than the children's
emotional and developmental needs and welfare).
Evidence
and the Distress Argument <Back to Top>
In a 2009
international leave to remove case, Re W, the trial judge challenged counsel's
argument that the mother would be psychologically harmed should her application
be refused. The Judge accepted 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.
Rather confusingly, this judgment by Lord Justice Wall seemingly only upheld
the trial judge's discretionary right to reach the conclusion he did, while the
guidance which states that no evidence need be supplied by the mother to
confirm she will suffer psychological harm at her application being refused
remains (as per the case Re G (Children) [2005] FLR 166). The case law
conflicts, and in reality is dependent on the trial judge's opinion and Court
of Appeal's actions to uphold trial judges' discretionary rights or their own
earlier guidance.
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.
The trial judge was
right that the psychological impact of refusal on the primary carer is one
factor among others of equal and arguably greater importance. There is much
controversy at the courts current position on what is referred to as the
'distress argument', but in many cases, 'the psychological impact on the primary carer' is the trump card in the barrister's deck of arguments.
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 <Back to Top>
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, a Prohibited Steps Order being made, or residence being granted to the
non-relocating parent would be the court's preferred outcome rather than a
residence order with restrictions.
Judgments in
Internal Relocation Cases <Back to Top>
The court has a
number of options when deciding the outcome of an internal relocation
case:
Restrictions
on Residence Orders <Back to Top>
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.’
The court has
generally favoured 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). In the case Re F (Children} [2010]
EWCA Civ 1428 we see the trial judge granting a
Prohibited Steps Order which prohibited the children relocating to Stronsay in Scotland.
Imposition of
restrictions on where a child may live by way of conditions on a residence
order or granting of a Prohibited Steps Order is possible,
although the likelihood of a successful appeal makes it a decision that
most judges would view with caution. It should be noted that any
restrictions applied for should be on where the child,
and not the relocating 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) <Back to Top>
If the Court decides
that a relocation should not proceed, it is unlikely
to favour Prohibited Steps Order or Residence Order with conditions as to where
the primary carer should live. Rather, if the court accepts that the move is
not in the children's best interests, it may make a Prohibited Steps Order
restricting where the children are to reside, or vary residence.
A parent's right to
live where they want carries considerable weight, and the court is highly
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 and/or that there exceptional circumstances. If
it is argued in court that exceptional circumstances need be shown to prohibit
the children's move, as might be implied by the guidance from the case Re E (Residence:Imposition of Conditions) [1997] 2 FLR 638 (see
below for links), the parent opposing the move should raise Lord Justice
Wilson's recent concern that the need to show a case is exceptional casts an
impermissible gloss on considerations regarding the children's welfare (which,
under the Children Act 1989, must be paramount) - ref Re F (Children) [2010]
EWCA Civ 1428 (at paragraph 26... see below for
links).
Applying to Court <Back to Top>
You need to download Form
C100 to apply for a Prohibited Steps Order. You can find this form on our Court Forms page
(requires Adobe Acrobat to open). Complete Form C100 and take three copies to
your local family court and ask for their administration department.
There will be a
charge for applying to the court, and you will find the current fee for a
Prohibited Steps Order at paragraph 2.1(d) on our Court
Fees sheet. If you are on benefits or suffering financial hardship, you may
get assistance with the court fee. Ask the court’s administration department
staff for assistance regarding this.
If you wish to apply
for residence at the same time, in the event that the court refuses permission
for the children to relocate but the other parent still moves, also specify
this on the C100 Form.
Before
setting off for the court building, ensure you have with you three completed
and signed copies of the Form C100 and the cash, cheque or postal order to pay
the court fee. After taking the forms and
payment to court, you will be provided with Notices of Proceedings (Forms C6A)
and a Form C9. There will be a Notice of Proceedings for each party, telling
each what they should do next, and informing you of the date and time of the
first directions hearing before the court.
If you
are the one applying for the order, it is up to you to serve (deliver or post)
copies of the court forms on the other parties. After having done this, you
must complete Form C9 confirming when you served the paperwork on the other
parties, and send this form back to the court.
Finding your local Court <Back to Top>
Find out where your local
County Court is, and check to see whether they handle family related cases. If
not, you need to locate one which does. You can use HMCS Court Finder
to do this. Once on that website, enter in your region under ‘Court Region
Search’. Then make sure that ‘Court Work Type Search’ is set to ‘Family Work’.
Then search under ‘Court Type’ and do a search first on ‘Combined Crown and
County Court’, then ‘County and Magistrates Court’, and then ‘County Court and
District Registry’. Choose the court which is closest to where you or your
children live and print the details.
The
Relocation Campaign <Back
to Top>
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 our shared care
research pages which may provide information to
support your arguments before the court.
Support <Back to
Top>
The Custody Minefield offers support forums
where you can ask our team of experienced support staff questions about family
law, the courts and separation. Collectively, we have answered more than 10,000
posts on other family law related support forums. Visit our Support Forum Page on
The Custody Minefield website to find out how to register.
[1]
International Movement of Children (Practice and Procedure), Nigel V.Lowe, Mark Everall, Michael Nicholls (Jordan Publishing Ltd, 2004)