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Internal Relocation


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, or is named as the person with whom the child lives within a child arrangements order, they do not normally have to seek the court´s permission to relocate with the children. That said, the practical arrangements set down in any existing contact or child arrangements order may make an application to the court necessary to vary the contact pattern. In such circumstances, the contact parent may have chosen to apply to the courts for a prohibitive steps order (to prevent the move) and/or have applied for a child arrangements order setting out that the children live with them instead of moving (hould the other parent carry through their relocation plans).

The objecting parent´s choices

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

  1. Accept that the children will move, and seek a new child arrangements order if an agreement via mediation fails, which ensures that lost parenting time is made up through an increase in holiday time (as seen in the case Re F (Children) [2003] EWCA Civ 592)) or weekends (if practical).
  2. Apply for a Prohibited Steps Order to prevent the children moving (this should be done urgently if the move is imminent, and urgently if you are unsure whether the move is imminent),
  3. To apply for a new child arrangements order including the child living with them during term time, with weekend contact for the other parent if distance allows, and time during school holidays with relocating parent. Practical arrangements need to be considered as part of the opposing parent´s case in the event that the court refuses permission for the children to relocate but the relocating parent goes ahead with their move.
  4. We would always urge that before heading to court, parents enter mediation, and since April 22nd 2014, the court expects that a mediated agreement be attempted. However, if there is any question of the move proceeding without the relocating parent seeking the court´s permission or contact parent´s consent, do not delay applying for a Prohibited Steps Order.

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

It is worth noting the judgment in Re F (Children) [2003] EWCA Civ 592 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

Since the abolition of residence orders, there is nothing to stop the court making a child arrangements order which states that children live with both parents, even when the parents live apart and across national or international borders.

A Right to Family Life?

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?

The ´Distress Argument´

One argument in favour of a relocation proceeding has historically been granted considerable importance in both internal relocation and leave to remove cases (relocation abroad), and this was ´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 provided guidance on these matters, the primary carer was referred to as ´her´, being the mother.

In the case Re S (A Child) [2001] EWCA Civ 847 and Payne v Payne [2001] EWCA Civ 166, Lord Justice Thorpe commented 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.´

A review of Payne v Payne in 2011, in the case K (Children) [2011] EWCA Civ 793 determined that the only ´binding precedent´ to come from that case was that the child´s welfare must be the court´s paramount consideration. While the relocating parent´s distress at having an application refused (and the impact on that of their care of the children) is still a matter the courts will consider, it is simply one among other factors, including the child´s relationship with the non relocating parent, the impact of a change in the status quo, the child's wishes and feelings and other matters related to the child's welfare and needs. The parents´ motives and plans will also be considered. While this review only related to international relocation cases, the fact holds that the child´s welfare must be the court´s paramount consideration and that the welfare checklist sets out the matters which the courts must consider when determining what is in the child´s best interests.

That the distress argument had previously been granted considerable weight by the court was somewhat glossed over, but the clarification was welcome. This followed considerable campaigning by The Custody Minefield and other organisations, with the support of Sir Bob Geldof, meetings at Westminster and broadsheet press coverage which criticised the Family Courts.

Research Supporting Co-Parenting

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:

  1. 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.´
  2. 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.´
  3. 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.
  4. ´Children in joint custody arrangements fare significantly better on all adjustment measures than children who live in sole custody arrangements´ [Bauserman 2000]

Evidence and the Distress Argument

In a 2009 international leave to remove case, W (Children) [2009] EWCA Civ 160, 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

In the leave to remove case M v H [2008] EWHC 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 Child) [2009] EWCA Civ 20, 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

The court has a number of options when deciding the outcome of an internal relocation case:

Restrictions on Residence Orders

Section 11(7) of the Children Act 1989 allows for conditions to be included in child arrangements 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.1

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).

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

In Summary (and our interpretation)

If the Court decides that a relocation should not proceed, it is unlikely to favour making an order which restricts where the parent who wished to relocate 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 living arrangements in favour of the non-relocating parent.

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. The distress argument is one factor for the court to consider, and the child´s welfare must be the court´s paramount consideration.

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, 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.

Applying for a Prohibited Steps Order

What form to apply to court?

You would use Form C100.

Applying to court

If you are using a solicitor, they will do this for you. Otherwise, download and complete the Form C100. Print and sign three copies of the form.

Check how much the court fees are (currently £215), and either take a cheque, postal order or cash for that amount when you go to your local family court.

It will assist both you and the judge if you write a brief Position Statement (see our packages on our main website for templates and guides on writing a position statement). Try to keep the position statement to two to three pages, setting out briefly why you are applying for contact, and why you believe it to be in the children´s best interests. Be factual, and try to be objective in what you write, and the language you use.

A position statement is not essential, but it helps inform the judge, briefly and ideally succinctly, why you are applying for the order, and can assist you in court so you do not forget any points you wish to raise.

Before setting off for the court building, ensure you have with you:

Where in the public domain, we provide case law (the full text of judgments) on our Internal Relocation Case Law Menu section where we also provide download links for printable versions of the judgments.

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Michael Robinson © 2014

Family law information for parents whose children are resident in England and Wales

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.

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