Children Come First

A consequence of the breakdown of some relationships is that one party will decide to relocate. However, where the parties have children, the issue of relocation can be an extremely contentious one. On what basis do the English courts decide whether a parent should be allowed to relocate with a child away from the other parent, and should the approach be the same if the relocation is within the UK or abroad?

In December 2015, the Court of Appeal handed down its decision in the case of Re C - an appeal by a father of an Order allowing a mother to move from London to Cumbria with the parties' now 10 year old child. The case has provided much needed clarity in relation to when a court should allow a relocation and whether the considerations differ between internal (within the UK) and external (outside the UK) relocations.

Historically, the courts have treated internal and external relocations differently, but it has long been deliberated whether they should do so. Why shouldn't the courts approach a relocation from London to Belfast (Northern Ireland being part of UK) in the same way as a relocation from London to Dublin (Ireland being outside the UK)? It is acknowledged that as well as jurisdictional considerations, distances and geographical barriers can be greater within the UK than between the UK and other countries. This was considered in an earlier case, Re F (Internal Relocation) [2010] EWCA Civ 1428, where the court dismissed a mother's appeal of an order that she should not be allowed to relocate with her children from the north east of England to the remote Scottish islands of Orkney, off the northern tip of the mainland.

In practice, no one (be they a parent or third party) should remove a child from the UK without the written consent of those with parental responsibility (which all mothers and most fathers have) or permission from the court. If there is a court order governing with which parent a child lives (a 'child arrangements (residence) order'), the 'resident parent' may take the child out of the UK for up to 28 days without the other parent's permission. However, if there is no child arrangements order, removing a child from the country without the consent of those with parental responsibility may constitute a 'wrongful removal.' The left behind parent could apply for the child's immediate return to the UK and such removal might also be a criminal offence (under the Child Abduction Act 1984). However, the success of such...