Separated parents with care of their children wanting to relocate in England or Wales beware

A judgement handed down before Christmas fundamentally changes the test to be applied for the carer of children of a separated couple wanting to relocate their children within England and Wales.

The welfare of the child has always been the court’s paramount consideration.

The evaluation of where a child’s interests lie continues to be determined by reference to the “welfare checklist” in section 1.3 of the Children Act 1989 which required consideration of the following factors:

a)      The ascertainable wishes and feelings of the child concerned (considered in the light of their age and  understanding);

b)      The child’s physical, emotional and educational needs;

c)       The likely effect on the child of any change in their circumstances;

d)      The child’s age, sex, background and any characteristics of theirs which the court considered relevant;

e)      Any harm which the child has suffered or is at risk of suffering;

f)       How capable each of the child’s parents , and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs; and

g)      The range of powers available to the court.

To date, however, the accepted position in law was that the parent with care of the children should not be fettered in where they lived in England or Wales save in exceptional circumstances.

This contrasts with the much more onerous test applied to parents with the care of children wanting to relocate outside of England and Wales where pursuant to the case of Payne –v- Payne [2001] EWCA Civ 166 and subsequent cases the court must then consider the following further guidance:

a)      There is no presumption in favour of the applicant parent;

b)      The reasonable proposals of the parent with care of the child wishing to live abroad carry great weight;

c)       Consequently the proposals of the parent with care have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end;

d)      The effect upon the applicant parent and the new family of the child of a refusal of leave is very important;

e)      The effect upon the child of the denial of contact with the other parent and in some cases their family is very important;

f)       The opportunity for continuing contact between the child and the parent left behind may be very significant.

Inevitably this has led to many more contested cases where the removal of a child from England and Wales was being considered.

The case of Re C (Internal Relocation) 2015 EWCA 1305 handed down before Christmas changes all that and – pursuant to Mr Justice Bodey’s helpful summary – makes clear that:

a)      “ [Critically] there is no difference in approach as between external and internal relocation and that the decision in either case hinges on the welfare of the child;

b)      The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child; and

c)       In either type of relocation case, external or internal, a judge is likely to find helpful some or all of the considerations referred to in Payne –v- Payne; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.”

This case, whilst helpfully setting out the criteria to be considered, will inevitably lead to many more contested cases regarding internal relocation.

 The non-resident parent will have far greater scope for objecting to the relocation of their child within England and Wales and therefore parents with care of children who want to relocate within the jurisdiction will need to make much more detailed plans for any move before one will be sanctioned in the event of a dispute.

The Family Team at Coley & Tilley have a lot of experience dealing with cases involving the relocation of children both within and outside England and Wales. If you require additional advice on either, Chris Allen-Jones, Head of the Family Department at Coley & Tilley Solicitors, can be contacted through the switchboard on 0121 643 5531 or by email on [email protected]