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Internal Relocation Case Law

E (Residence: Imposition of Conditions) [1997]

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

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.

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Re S (A Child) [2001]

Re S (A Child) [2001] EWCA Civ 847

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).

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Re F (Children) [2003]

Re F (Children) [2003] EWCA Civ 592

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).

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B v B [2004]

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 serious issues was a significant factor in her application being refused.

Re G (Children) [2006]

Re G (Children) [2006] UKHL 43, [2006] 2 FLR 629

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.

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Re E [2006]

Re E (Shared Residence: Financial Relief: Yardstick of Equality) [2006] 2 FLR 1228

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]

Re B (A Child) [2007] EWCA Civ 1055

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.

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M v H [2008]

M v H [2008] EWCA 324 (Fam)

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

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Re A (A Child: Joint Residence/Parental Responsibility) [2008]

Re A (A Child: Joint Residence/Parental Responsibility) [2008] EWCA Civ 867

The mother and the step father began a relationship while the mother was still pregnant. The biological father had no involvement. The mother sought to relocate. The court awarded joint (shared) residence to the step father, which also gave him parental responsibility, in part to ensure his role was not marginalised in the future. The order was appealed, and the appeal rejected.

Also worth noting the further clarification of when a shared residence order might be made (and one not restricted to parenting time) and the following is quoted from this judgment:

On granting parental responsibility via shared residence orders

´...In Re:H (Shared Residence: Parental Responsibility) [1995] 2 FLR P. 883, the Court of Appeal clearly stated that a shared residence order was an appropriate means of conferring parental responsibility upon a step father. [In] the much more recent case of R: G (Children) [2005] EWCA Civ P. 462, the Court of Appeal turned to the use of shared residence as a tool to ensure that the non-biological parent shared parental responsibility for the child concerned.

Parental Conflict not an obstacle to granting a shared residence order

´It is not the case, as has been suggested by Mrs R, for example, that conflict and parental acrimony are grounds to refuse to make an order for shared residence. In A & A (Shared Residence) [2004] 1 FLR 1195, Wall J (as he then was) made a shared residence order against a background of tremendous conflict between the parents that resulted in frequent applications to the Court.

On shared residence orders generally and psychological benefits to the parents

66. The making of a shared residence order is no longer the unusual order which once it was. Following the implementation of the Children Act 1989 and in the light of S.11(4) of that Act which provides that the Court may make residence orders in favour of more than one person, whether living in the same household or not, the making of such an order has become increasingly common. It is now recognised by the Court that a shared residence order may be regarded as appropriate where it provides legal confirmation of the factual reality of a child’s life or where, in a case where one party has the primary care of a child, it may by psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.

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Re T (A Child) [2009]

Re T (A Child) [2009] EWCA Civ 20

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:

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F (Children) [2010]

F (Children) [2010] EWCA Civ 1428

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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Michael Robinson © 2014

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

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