RELOCATION, RELOCATION, RELOCATION

It is a problem that regularly crops up. A couple with children split up. The children live with one parent – we will assume the mother – but the other parent has regular contact. The mother then meets a new partner or gets a new job. She wishes to move to the other end of the country or – even worse from the father’s point of view – to a different country. In practical terms, the father faces a drastic reduction in the amount of contact he has with the children.

Different rules apply to proposed relocations within the UK (an “internal relocation”) and to those abroad (an “external relocation”). In the past, the mother has been free to chose where she lives within the UK although, exceptionally, a residence order in her favour may stipulate where she is to live. However, the father may apply to the Court for what is known as a prohibited steps order to stop relocation. Increasingly, the courts are making shared residence orders providing for the children to spend half their time with one parent, half with the other. If the mother wishes to relocate in such a case, she will need to apply to the Court for a variation of the order. By contrast, the mother will not be entitled to remove the children from the UK for a period of a month or more without first obtaining the father’s written consent or, alternatively, permission from the Court. Once, permission would almost certainly have been granted, but it is now more difficult to predict the Court’s decision.

Traditionally, the courts have been cautious about interfering with the mother’s right to choose where she lives. That the mother intends to relocate may be a factor in deciding in whose favour a residence order should be made. In the case of a permanent external relocation, the Court will want to be reassured that the mother has done her homework in relation to matters such as the children’s education and that the proposed move is not simply a sudden whim. The Court may be reluctant to interfere with the mother’s serious intention to relocate abroad. The key issue is the welfare of the children. The thinking is that thwarting the mother’s wishes in terms of a life with a new partner or a new career may seriously affect her sense of emotional well-being and indirectly impact on the welfare of the children.
These principles remain unchanged. However, these cases are extremely fact-sensitive, as lawyers like to say. Two recent examples:

• Re L – This was an internal relocation case. It was the first such case concerning a shared residence order. Following their separation, both parents lived in London. L’s mother was Scottish and held an Israeli passport. L's father was Serbian but had settled in England. L was born in 2004 and started primary school in London in September 2008. In December 2007, a shared residence order was granted, enabling L's time to be divided between her parents. The father subsequently applied to have the terms of the order varied. This application was opposed by the mother, who also made her own application for variation of the order so as to allow her to relocate to Somerset. The mother, who was unemployed, argued that she had found a job in Somerset; that she would be able to rent suitable accommodation there; that a place was available for L at a local primary school; and that the setting was in “L's best overall and long-term interest”.
The County Court Judge rejected the mother’s application and made an order increasing the time to be spent by L with her father (although not to the extent sought by the father). The Judge was somewhat sceptical of the mother’s claim that she was unable to find work in London although he did not decide the case on that basis. The mother’s application was not helped by the fact that she had previously applied to relocate to Israel. That application had come before the same Judge and on that occasion he had reached the conclusion that the mother had been less than straight with the Court. On the present application, the Judge had his doubts as to the mother’s motivation in seeking to relocate, suspecting that it might be a prelude to breaking all contact with the father. He concluded that relocation was not in L’s best interests.
The Court of Appeal dismissed the mother’s appeal. In doing so, the Court confirmed that a shared residence order is not necessarily inappropriate where the parents live some distance apart, and that the existence of such order is not an automatic bar to relocation. However, the Court ruled that in this case the Judge had been entitled to reach the conclusion that relocation would not be in L’s best interests.

• Re W - This was an external relocation case. An unmarried couple had two children. Following the couple’s separation, the children lived with the mother but the father had regular weekend staying contact. The mother formed a new relationship with B. Planning to emigrate to New Zealand with the children, where B had obtained employment, the mother applied to the Court for permission to relocate. The mother argued that the effect of not being allowed to relocate would be “horrendous”. The father contended that if relocation was permitted, his relationship with the children would effectively cease.

Having heard evidence from both parents and the CAFCASS (child welfare) officer, the County Court Judge dismissed the mother’s application. Whilst he understood that the mother would be upset if her application was rejected, he did not accept that she would be emotionally damaged. He found that B had not made a serious effort to find work in the UK and that, if relocation was permitted, contact with the father would not be actively encouraged. He also felt that the mother had not taken proper account of the loss of the wider family.

The Court of Appeal dismissed the mother’s appeal. The Judge had taken the correct approach and properly applied the law. There were no grounds for interfering with his decision.

Although these cases do not really lay down any new principle, they highlight the importance of thorough preparation of cases before trial. The Court of Appeal will only interfere with the decision of a trial judge if it is satisfied that he or she has gone wrong on a matter of principle. However, the cases also suggest that perhaps a different emphasis is developing with greater weight being placed on the biological father’s continuing role in the children’s lives. In W’s case, it is unclear whether the fact that the mother and B had no plans to marry had any effect on the Judge’s views as to the likely permanence of their relationship and the likely stability of the children’s future. However, the more secure, stable, and well-planned the future life, the more likely it is to persuade a Judge to grant permission.

In light of the increased willingness to make shared residence orders and the increased emphasis being placed on the desirability of children maintaining a positive relationship with both parents, a parent seeking permission for relocation from the Court may now face more of a challenge.

If you would like to know more, please contact Mary Banham-Hall or Dawn Millar.

Filed: 05/11/2009 12:26:14