James Thornton and Frank Arndt

As Henry Ford says, “If everyone is moving forward together, then success takes care of itself.” 

Moving forward or relocating to a different country is sometimes difficult, especially when the parent left behind does not want a distance relationship with the children.

Attempting to understand the principles to be applied in internal relocation cases has been one of the most difficult tasks in family law.

The court has invariably been placed in the position of seeking to balance on the one hand the weight to be given to the desire of a primary carer to relocate within the United Kingdom against, on the other, the effect of a move on the relationship of the child with the left-behind parent, particularly where the distance involved is considerable. Establishing the true position is very fact specific in each case.

The Welfare of the Child is Paramount

However, there is only one principle in relocation cases and that is that the welfare of the child is paramount; there are no presumptions and any guidance is exactly that, guidance, and as such is designed to be of assistance (or not) depending on the circumstances of the case.

Quick Summary of Relocation Cases

After a period of uncertainty as to how the so called Payne guidance (Payne v Payne [2001] EWCA Civ 166; [2001] 1 FLR 1052) should be applied in relocation cases, the matter has been clarified in K v K (Relocation) (Shared Care Arrangement) [2011] EWCA Civ 793; [2013] 2 FLR 880 and thereafter re-emphasised by the President in Re F (Relocation) [2012] EWCA Civ 1364. The judge, having cited parts of K v K, reminded himself that the Payne guidance is not a presumption but that “that does not mean that Payne v Payne is not helpful in terms of the guidance that it does provide.”

K v K tracks the law back as far as Poel v Poel [1970] 1 WLR 1469. For the purposes of his argument, Mr Geekie traces through to more recent authorities the observations made in the well-known passage from the judgment of Griffiths LJ from Chamberlain v de la Mere (1983) 4 FLR 434 where he said:

“The welfare of young children is best served by bringing them up in a happy secure family atmosphere. When, after divorce, the parent who has custody of the children remarries, those children then join and become members of a new family and it is the happiness and security of that new family on which their welfare will depend…..

If a step-father for the purposes of his career, is required to live elsewhere the natural thing would be that he will wish to take his family, which now includes his step-children, with him, and if the court refuses to allow him to take the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be damaging to those step-children, or alternatively he may gave to throw up his career prospects and remain in this country.

If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects.

If that happens it must reflect upon the happiness and possibly even the stability of this second marriage. It was to that effect that the court was pointing in the decisions of Poel v Poel [1970] 1 WLR 1469 and Nash v Nash [ 1973] 2 All ER 704 and it was stressing that it was a factor that had to be given great weight when weighing up the various factors that arise when a judge has to decide whether or not to give leave to take the children out of the jurisdiction.”

This in turn was incorporated as an important feature by Dame Elizabeth Butler-Sloss P in Payne as was summarised by Black LJ in K V K:

“[125] She analysed the guidance to be derived from the earlier cases. In paragraph 83, she focused on the impact on a child’s welfare of the frustration of reasonable plans made for relocation, culminating in the observation that:

“If the arrangements are sensible and the proposals are genuinely important to the applicant parent and the effect of refusal of the application would be seriously adverse to the new family, e.g. mother and child, or the mother, stepfather and child, then this would be, as Griffiths LJ said, a factor that had to be given great weight when weighing up the various factors in the balancing exercise.”

[126] In paragraph 84, she turned to the other considerations that would be relevant in the following terms:

“84. The strength of the relationship with the other parent, usually the father, and the paternal family will be a highly relevant factor, see MH v GP (Child: Emigration) [1995] 2 FLR 106. The ability of the other parent to continue contact with the child and the financial implications need to be explored…..”

Black LJ, looking back over what is now nearly 40 years of jurisprudence in this area of family, [140] came to several conclusions in her judgment in K v K:

“[141] The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

[142] Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else – the valuable guidance – can be ignored. It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.

[143] Furthermore, the effect of the guidance must not be overstated. Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed.

Thorpe LJ said so in terms in Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of paragraph 26 (“Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children”) for re-elevation to a status akin to that of a determinative presumption.

It is doubly inappropriate when one bears in mind that the judgments in Payne must be read as a whole, with proper weight given to what the then President said. She said that she wished to reformulate the principles since they may have been expressed from time to time in too rigid terms with the word ‘presumption’ over-emphasising one element of the approach (paragraph 82) whereas the criteria in s 1 Children Act govern the application (paragraph 83) and there is no presumption in favour of the applicant (paragraph 84).

Dame Elizabeth referred, of course, to the effect on the parent with residence (paragraphs 83 and 84) but she also stressed that the relationship with the other parent is highly relevant and that there are many other factors which may arise in an individual case (paragraph 84).

I detect in her discussion of the factors and in her summary at paragraph 85 no weighting in favour of any particular factor. She said that the reasonable proposals of the parent with a residence order wishing to live abroad carry “great weight” whereas the effect on the child of denying contact with the other parent is “very important” but I do not infer from that phraseology any loading in favour of the reasonable proposals as opposed to the effect of the loss of contact.

[144] Payne v Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case.”

In Re F ( Relocation) [2012] EWCA Civ 1364; [2013] 1 FLR 645, Munby LJ (as he then was) said:

“[37] …..There can be no presumptions in a case governed by section 1 of the Children Act 1989. From beginning to end the child’s welfare is paramount, and the evaluation of where the child’s best interests truly lie is to be determined having regard to the ‘welfare checklist’ in section 1(3).”

Safeguarding

As a practical point, don’t forget the safeguarding provision and insurance as set out in the latest Court of Appeal decision in  M (Children), Re [2016] EWCA Civ 1059at [66] to [70].

ABOUT JAMES AND FRANK

James Thornton and Frank Arndt, matrimonial experts, founded  Paradigm Family Law in 2014. It is a niche practice specialising in family law advice and the first family law firm to offer services on the basis of BESPOKE FIXED FEES tailored to clients’ particular needs and requirements.

James and Frank have over 30 years’ experience in the field of family law, and provide specialist legal advice for family matters including international family disputes.