It may be that a non-resident parent has spent years – and many thousands of pounds – building up contact to a reasonable level, only to be set back to square one and a couple of hours a fortnight by a former partner who decides to up sticks and take the child three or four hundred miles away. If there are orders already in place any move may very likely breach them and the relocating parent should therefore apply for a Specific Issues Order.
The leading case for relocation within the UK used to be Butler-Sloss LJ’s decision in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638. The lower court judge had imposed a condition restricting the children to residence at a named address unless agreed by the father or ordered by the court. The condition was overturned on appeal. Butler-Sloss said,
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.
Butler-Sloss ignored the impact the decision would have on contact. More recent decisions take this into greater account. The Court’s paramount consideration should always be the child’s welfare.
In B v B (Residence: Condition Limiting Geographic Area) [2004] 2 FLR 979 a mother was prevented from relocating from the South of England to Newcastle. The case hung on the fact that contact would depend on the mother boarding a flight to London and that she had been consistently hostile to contact, misleading the Court on a number of serious issues. The move would not be in the child’s best interests (the text of this case has not been made public).
The leading precedent now is Re L (A Child) (Internal Relocation: Shared Residence Order) [2009] EWCA Civ 20, also reported as Re T (A Child) [2009] EWCA Civ 20 in which a mother appealed a judge’s decision to prevent her relocation from North London (the matrimonial home) to Chew Magna in Somerset (where the mother was living with her new husband), a distance of about 130 miles or 2 hours travel. The judge achieved this, not by imposing conditions under s.11(7) but by varying the existing Shared Residence Order; to extend the periods the child spent with her father at weekends (1) ‘from after school on Fridays until the beginning of the school day on Tuesdays on alternate weeks’; and (2) ‘from after school on Tuesdays until the beginning of the next school day being the Tuesdays in the weeks following the Tuesdays in (1)’.
This was, according to Lord Justice Wall in the Court of Appeal, the first case regarding internal relocation where there was already a Shared Residence Order in place. The mother had previously been refused leave to move to Israel, and the father claimed that this was the latest in a series of moves to disrupt contact, which the mother denied. Refusing the move to Israel the judge had said,
part of (the mother’s) motivation for the proposed move is to diminish greatly (the father’s) relationship with their daughter and that it can be categorised properly as selfish. She did not see the need nor have any wish to discuss or involve (the father).
Wall found that, because an order for shared residence could already be made where there was substantial geographical distance between the parents (see Re F (Shared Residence Order) [2003] EWCA Civ 592), the fact that there was an existing Shared Residence Order was a factor but should not be the deciding one. The essence was to balance a parent’s right to relocate against a child’s best interests.
Wall found that the mother had not been truthful about her partner’s work, and had then tried to conceal the untruth as ‘a typographical error’. She had delayed telling the father of her intention to remove; she’d shown a ‘lack of frankness’ about a trip to Australia during which she and her partner were to marry; she had made a number of unilateral decisions regarding the daughter; her motivation in removing was substantially to diminish the father’s relationship with his daughter and undermine the SRO, the purpose of which had been to ensure that neither parent was to be regarded as primary carer.
Wall decided to dismiss the mother’s appeal on the grounds that the lower court judge’s decision was not ‘outwith the ambit of reasonable disagreement, or plainly wrong’ (paragraph 62). The SRO remained in place, providing the father with midweek care, and making removal impossible; but Lord Justice Wall added this postscript, which all warring parents should heed:
The father and the mother share equal responsibility for this state of affairs, and the father in particular should not regard the outcome of this appeal as a victory: it is, in reality, a defeat for both parties, who have been unable to resolve their differences by sensible agreement. They are fortunate in having a daughter whom they both love and who loves them. Each must fully appreciate the role the other has to play in L’s life, and the current hostility between them must cease. Otherwise, in my judgment, the emotional damage to L will be serious and lasting.
In Re F (Children) [2010] EWCA Civ 1428 a mother proposed to relocate 4 children aged 9, 11 12 and 14 from Cleveland to the Orkneys. Two children favoured the relocation, two opposed it. The recorder refused the application, describing the location as one of the remotest inhabited places in the UK and the application as ‘truly exceptional’ and not in the children’s best interests. The Court of Appeal unanimously dismissed the mother’s appeal, quoting Re L, and considered that the recorder had been wrong to allow the appeal.
