One of my barrister colleagues at Harcourt Chambers has a case coming up about internal relocation. Relocation cases are disputes between separated parents that arise when one of them proposes to move to a new geographic location with their child or children and the other parent objects. The 'internal' part means a move within the United Kingdom, rather than internationally.
Families obviously move house all the time after separation, but internal relocation disputes that end up in court are pretty rare for a number of reasons. Some of those reasons are obvious - separated parents work things out for themselves when one of them wants to move, or the move isn't far enough to justify the kind of expense and aggravation that a court case involves. There are less obvious reasons, though, which relate to the law itself.
The Law on Internal Relocation:
Like all parenting disputes about children's upbringing, internal relocation disputes are governed by the Children Act 1989. The heart of the Act is that in all decisions about a child, that child's welfare must be the paramount consideration. In practical terms, that means that any relevant information can be taken into consideration, but only things which directly or indirectly affect the child will be considered relevant. This 'welfare principle' is then guided by case law as it develops in relation to particular types of case.
The first litigated internal relocation case that reached the Court of Appeal (and so started to matter more generally to the law) was a case reported as Re E (Residence: Imposition of Conditions) in 1997. In that case, the mother was providing the main care of the children, and the father sought an order from the court preventing her from moving with them from London (where they had lived before separation) to Blackpool (where the mother's extended family lived). The Court of Appeal refused to make the restrictions on the facts of that case, and set out some general guidelines for future decisions.
In the leading judgment of Lady Justice Butler-Sloss, it was noted that although the Children Act contains a power to impose conditions on a residence order, it would 'not sit easily' with what was meant by a residence order if conditions were routinely imposed. A residence order, which determines the person or persons with whom a child shall live, would normally come with significant flexibility about how to raise the child while in that person's care. As the judge went on:
"A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will live within the UK or with whom. There may be exceptional cases".
This final point, about exceptional cases, was clearly intended by Butler-Sloss LJ to avoid any overly rigid rule, but with the advantage of hindsight it was perhaps unfortunately expressed. In subsequent cases, other Court of Appeal judges began to refer to the 'highly exceptional' circumstances which might justify stopping an internal relocation, and then of the 'truly exceptional' nature of an order stopping an internal relocation.
In the most recent reported case, Re F (Internal Relocation) in the summer of 2010, Lord Justice Wilson expressed 'puzzlement' at this development of the law. As the judge noted, it is hard to see any legal justification for an exceptionality test. All decisions about children's upbringing are governed by a single principle, namely that the welfare of the child is the paramount consideration. If a welfare analysis suggests that internal relocation is not in the child's interests, why should there be a requirement that the case be in some way 'exceptional'?
It might be argued that this label is purely descriptive: as a matter of fact, cases where restrictions on relocation within the UK will be the exception. (That is what I think Butler-Sloss LJ probably meant in Re E.) That might be fine. As the Supreme Court said in another child law case, it is okay for the outcome of decisions more often to be X rather than Y, but not okay for there to be a starting point or presumption in favour of X.
However, the way that the law in this area has developed means that the label is not really descriptive, but is actually a test which presents a high hurdle for someone seeking to stop an internal relocation to cross. Lord Justice Wilson was clearly unhappy about this state of affairs in Re F, but thought that the Court of Appeal was not able to do anything about it:
"It is now too late ... for [the Court of Appeal] to rule that, in internal relocation cases, the analysis of the child's welfare ... should not be conducted through the prism of whether the circumstances are exceptional. ... But for the reasons given, I believe that, had I not felt bound by authority, I might have wished to suggest that a test of exceptionality was an impermissible gloss on the enquiry mandated by section 1(1) and (3) of the [Children] Act."
While I think that the Court of Appeal could, in fact, have removed this undue gloss on the welfare principle, Wilson LJ nonetheless makes the argument for a re-think clearly.
Relocation Research
Similar ideas were found in my research into relocation disputes in 2009, when I interviewed lawyers and judges about their experiences of the law. One judge whom I interviewed and who, like Wilson LJ, was uncomfortable with placing an exceptionality gloss on the welfare principle, said this: "If the welfare analysis suggested that it would be best for the welfare of the children for them to stay, ... the court should have the power to make that happen."
Other participants pointed out the strangeness of having a different approach to moves inside the UK (allowed unless there are exceptional circumstances) and moves outside the UK (where there is a multi-stage test, albeit a controversial one). Many participants noted that maintaining regular contact after a move from London to Perth or Bangor would be a lot more difficult than after a move from London to Paris or Brussels.
However, even for shorter moves, some lawyers and judges were concerned about the effects that an internal relocation might have. As one solicitor said, "you might be talking about only a one-hour or two-hour journey, but [such moves] are still equally destructive [of contact]". It was these consequences of the decision that led one barrister to stress the importance of making the judge see why the case was important and more difficult than a normal contact case:
"You have got to look at this much more carefully and say, if I make this decision to [allow the parent to] relocate internally miles away ..., what is the medium- to long-term effect of that? Is it going to be reasonable [to continue] to have fortnightly contact? Often it is not, if the distance is vast and involves huge amounts of driving."
This is the reason why relocation cases call for a broad all-factor child-centred approach, not restricted by the straitjacket of an 'exceptionality' test.
Discussion:
Relocation law, both internal and international, is long overdue for a re-think. As one senior barrister said in my research, it is not necessarily even that the Court of Appeal has got it wrong at the moment (though it may have), but rather there are just so many people who are unhappy with the law as it is that the courts should review it with an open mind as to what the outcome will be.
There is lots I could say about how the law should be changed, but there's one overarching point that I think comes from this discussion. It seems increasingly difficult to justify having a legal approach in which so much depends on the proposed destination of the relocation. To be honest, I'm doubtful whether having a different rule for moves within the UK versus moves elsewhere would prove to be EU-law compliant if challenged in the European courts. (The rule appears to favour moves within the UK and therefore disfavour moves elsewhere within the EU, thus de facto discouraging people from exercising their rights to free movement within the Union.)
The Court of Appeal has often stepped in before to remove other glosses on the welfare principle that grew accidentally over time, and it should do the same with internal relocation. Failing that, then it is time for the Supreme Court to get involved, preferably with a combined appeal involving both internal and international relocation cases so that the legal principles of the two sides of relocation law can be considered together.
In an article published in the Journal of Social Welfare and Family Law in 2010, I suggested a series of questions that might be considered when dealing with a relocation case:
(1)
What is the reality of the existing care arrangement, including consideration
of the various contributions which are being made to the child’s welfare and
wellbeing?
(2)
Why does Parent A wish to relocate, and, in particular, is the relocation a
covert attempt to disrupt the child’s relationship with Parent B? In terms of
practicalities, are the plans to relocate well considered and reasonably
realistic? Similarly, why does Parent B oppose the relocation?
(3)
Taking into account the answers to (2), is Parent A able and willing not to
relocate if the child cannot move? Conversely, is Parent B able and willing to
move as well if the child does move, so as to continue the present care arrangement
in a different location? Assuming one (or both) of these options to be
possible, consideration must be given to whether it would be in the child’s
interests to adopt that course, taking into account the likely effect on each
parent and, directly and indirectly, on the child.
(4)
If the options in (3) are impractical or undesirable, what would be the
advantages and disadvantages for the child, either of going with Parent A or of
remaining with Parent B? This assessment should take into account factors like (a)
the realities of the existing care arrangements; (b) the effect on the child of
moving with Parent A while Parent B remained, or of remaining with Parent B
while Parent A moved (including the effect on the child’s relationship with the
each parent, with other family members, and with friends and community more
generally); (c) the possibility for maintaining a strong on-going relationship
with whichever parent the child was not with; (d) the general disruption
involved with moving (new school, etc) compared with remaining in the current
location; and (e) any significant material advantages or disadvantages either
way.
(5)
What are the child’s own views about the matter, taking into account the
child’s age and maturity?
This approach probably isn't perfect, but it might be a place to start in re-thinking relocation law.
For more detailed discussion, see my two case
commentaries on internal relocation cases in the
32 JSWFL 71-80 and (2011) 33 JSWFL 169-174
