C (Internal Relocation), Re

Factual and Procedural Background

This appeal concerns orders made by Mr Recorder Digney on 23 March 2015 regarding a child, C, born October 2005, aged 10. The mother wished to relocate from London to Cumbria with C, while the father, who has had considerable involvement in C's life, opposed the move, seeking to maintain the existing London-based arrangements. The Recorder permitted the mother to relocate with C from 1 September 2015, ordering C to attend a school in Cumbria and setting a child arrangements order dividing C's time between the parents, including alternating weekends and potential midweek overnight stays with the father. Both parents had made applications concerning C’s care, with the father seeking shared residence reflecting current arrangements and the mother seeking permission to move with C to Cumbria.

The parents were never married; their relationship lasted from 2004 to 2007. Both are employed, with the father financially better off. The father purchased a London flat near his home for the mother and C to live rent-free. Proceedings under Schedule 1 of the Children Act 1989 were ongoing. C currently attends a fee-paying London day school and spends time with the father two nights a week and every other weekend, with after-school care arrangements involving a local carer. The case involved evidence from both parents, a CAFCASS report, and oral testimony, with the Recorder ultimately allowing the relocation despite the father's opposition.

Legal Issues Presented

1. What is the correct legal approach to internal relocation cases within the United Kingdom, and does it differ from the approach to external relocation cases?
2. Whether the Recorder erred in permitting the mother’s proposed relocation with the child to Cumbria.
3. Whether the Recorder improperly applied the welfare principle or gave undue weight to certain factors such as the mother’s status as primary carer or the father's role.
4. What role, if any, does the concept of "exceptionality" play in internal relocation cases?
5. How should proportionality and Article 8 ECHR rights be integrated into the court’s welfare analysis in relocation disputes?

Arguments of the Parties

Appellant's Arguments (Father)

• The Recorder was wrong to sanction the mother’s relocation proposals.
• The father contended that the current arrangements should continue with increased weekend time for him.
• The father argued the Recorder wrongly relied on the Payne v Payne guidance and treated the mother as the primary carer to C’s detriment.
• The father submitted that the Recorder failed to give proper weight to his important role in C’s life.
• The father criticized the Recorder’s dismissal of his financial proposal to assist the mother in purchasing property in Cumbria while maintaining London accommodation.
• The father argued the Recorder failed to properly consider the harm to C from changing schools and the loss of after-school care arrangements.
• He suggested the Recorder erred by proceeding on personal views rather than evidence, particularly regarding the practicality of two homes and parental cooperation.

Respondent's Arguments (Mother)

• The mother’s application to relocate was genuine, well researched, and motivated by a desire to return to her home region with family support.
• She argued the current London flat was unsuitable due to damp and lack of space, and she sought a more stable home environment for C.
• The mother contended that the move would benefit C’s schooling and overall well-being.
• She expressed concerns about C’s midweek arrangements causing confusion and sought more consistency in C’s living arrangements.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a comprehensive review of the law on internal relocation, concluding that the welfare principle under section 1(1) of the Children Act 1989 is paramount and governs both internal and external relocation cases equally. The traditional approach distinguishing internal from external relocation, often based on section 13 of the Act or notions of "exceptionality," was found to lack convincing justification. The court emphasized that the so-called "exceptionality" test is not a separate legal principle but rather a reflection of the welfare analysis in practice.

The court analyzed prior authorities, including Re E, Re S, and others, to confirm that restrictions on a primary carer's choice of residence within the UK are highly unusual and only justified when the child's welfare requires it. It rejected any rigid or prescriptive application of the Payne v Payne factors, instead endorsing their use as a non-binding checklist within a holistic welfare assessment.

Regarding proportionality and Article 8 ECHR rights, the court recognized that relocation decisions invariably interfere with parental rights, and the court must strike a fair balance prioritizing the child's best interests. The proportionality assessment is integrated into the welfare analysis rather than treated as a separate step.

Applying these principles to the facts, the court found that the Recorder's decision to permit the mother’s relocation was consistent with the law. The Recorder carefully weighed the evidence, including the CAFCASS report, the child’s wishes, the quality of schooling, accommodation issues, and the impact on relationships with both parents. He did not improperly elevate the mother's status as primary carer nor diminish the father's role. The Recorder was entitled to reject the father's financial proposal as speculative and to give reasons for departing from the CAFCASS officer’s recommendation.

The court found no material error in the Recorder’s factual findings or legal reasoning, including his assessment of the practicality of two homes, the impact of the move on the child’s welfare, and the likely effect on parental relationships.

Holding and Implications

The court DISMISSED the appeal, affirming the Recorder’s orders permitting the mother to relocate with the child to Cumbria and the child arrangements order setting out contact arrangements with the father.

The decision reinforces that the paramount consideration in both internal and external relocation cases is the welfare of the child, assessed through a holistic balancing exercise incorporating the welfare checklist. It clarifies that the "exceptionality" test is not a separate legal requirement but a reflection of the welfare analysis. The court emphasized that the principles applicable to external relocation apply equally to internal relocation, with no separate or more lenient regime for moves within the UK.

No new legal precedent was established beyond the clarification of the approach to internal relocation cases, but the judgment provides a thorough and authoritative summary of the law and its application, guiding future cases on parental relocation within the United Kingdom.