Can you move with your child anywhere you choose around the UK? Do you need the permission of the other parent? If parents separate, a child cannot be taken abroad without the permission of the other parent. Is it different if moving around the country, perhaps from one end of the country to the other?
There is much guidance on the law in respect of external, international relocations; where one parent wants to take a child to live permanently abroad. There is very little guidance in respect of internal relocations; around the UK, including within England and Wales.
On 28 October 2015 the Court of Appeal heard a case concerning internal relocation. There is much hope that the law will be clarified when the judgement is given in the coming weeks, perhaps before Christmas.
When parents separate, the law encourages them to reach agreements direct regarding the best arrangements for their children. This will include how long each child spends with each parent during school time and school holidays. In part this depends on the circumstances of the working hours of each parent, the living arrangements and schooling of the child and generally what is best for all concerned. In almost all cases agreements are reached. The child hopefully maintains a good relationship with each parent.
When either at a time of separation or subsequently one parent wants to move abroad, the question arises about whether the child could or should also move. This may be a geographic move because of work opportunities, returning to home country, being with a new spouse or partner or other reasons. These are some of the most difficult matters for families. Whereas on parental breakdown, both parents may continue to have a significant involvement with the children, on a relocation this is inevitably very different. There is a real risk that the so-called left behind parent has a far greater difficulty in maintaining the parent-child relationship from a long distance.
English law on international relocation had over several decades been based on a leading case of Payne. This had held that if the parent, often the mother, had good and realistic plans for the move with genuine motives, the court would expect the left behind parent to demonstrate the adverse consequences of the move on his relationship with the child, to show good reasons for opposing the move and, crucially, take account of the impact on the mother-child relationship of a refusal to allow the relocation. Over many years this was highly criticised as too favourable to the mother seeking to move.
In important cases in 2011 and 2015, the English courts had pulled back from this approach and concentrated on the best interests of the child.
But what about internal relocation? Does one parent need permission? Should the other parent be told in advance? Can one parent successfully oppose the other parent moving around the UK with the child? These were issues in the Court of Appeal case
Court of Appeal hearing
The parents came from a family of reasonable means, living in south London. There was a nine-year-old daughter. The mother wanted to move to Cumbria, which includes the Lake District. The father had opposed it and been unsuccessful at first instance and appealed to the Court of Appeal.
We attended the hearing because of the importance of this issue to many national and international families.
The father argued through his legal team that the approach in Payne, as described above, had no place in internal relocation law. There should be a holistic overall welfare approach, balancing the father’s right to family life under Art 8 i.e. his relationship with the child, with the best interests of the child. There should be greater weight given, as with the court decisions in 2011 and 2015, to the best interests of the child without any gender based, or indeed biased, assumptions.
The mother argued that the Payne criteria was still valid, relevant and important in applicable cases including one such as this. Internal and external relocation cases should be handled the same way with same criteria. There should be consistency of approach.
It was said to the Court of Appeal that it should be truly exceptional for any restrictions to be placed in the entitlement of the parent with primary care of the child in moving around the UK without reference to the other parent.
A decision is awaited and will be posted with a full commentary.
It is surely inconsistent to have a different law for internal and external relocations. What matters is the impact of the move on the child and on the parent-child relationships. For a family of modest means, the impact on the so-called left behind parent of one parent and the child moving from Exeter to Sunderland, with the very high costs of public transport, travel time and similar, will be far greater than a move from London to Brisbane for a family with the means and time and opportunity for such travel. Moreover both involve a change of schooling for the child which should be a matter of joint decision by both parents. This is parental responsibility and responsible parenting.
Location of the move will sometimes be important when it is moving to a very different culture, language, educational system and similar. But the world is becoming increasingly multinational. Many children of international families are educated in international schools in different cities, with children speaking several languages and often with lifestyles not too affected by geography
Relocation involves decisions and choices which are far more significant for the child than post separation matters such as times of contact and when to see each parent when parents live close to each other or accessible for contact visits. It is the separation from the other parent which is of crucial importance, whatever the mileage and the national borders crossed. It is the impact on the child and the relationship with both parents which really matters. This should always be to the fore in the consideration of any relocation
The recognition of the Art 8 right an entitlement to family life namely the parent-child relationship is a very important one for the upbringing and well-being of the child and the so-called left behind parent.
We look forward to the outcome from the Court of Appeal. We will provide a full commentary
We act for very many international families including many relocation cases, both in bringing an application to relocate and in successfully defending. Please contact us if you would like to know more about this area of law, the forthcoming Court of Appeal decision or to discuss any aspect of moving, internally or internationally, with your child
My iFLG partner, Ann Thomas, undertakes many of these cases
I am grateful to my iFLG colleague, Emma Chowdhury, for her assistance on this article