Anest Mathias considers the development of and current law in relation to applications for the relocation of children.

There is a general consensus that historically court rulings in England and Wales are most often in favour of a mother’s wish to relocate. This article looks at recent rulings and examines whether the tide may be changing and the extent to which the courts may now be looking at the welfare of the child or children in question. 

The Story so far 

The case of Poel v Poel in 1970 summed up the general position at the time of the courts with the judge stating that "the court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given" This effectively gave the parent with custody the freedom to live where they wanted to.

The concept of custody no longer exists following the implementation of the Children Act 1989. 

The 1989 Act

This act sets out the factors to which the Court is to give particular consideration when considering applications such as an application to relocate. The factors are commonly referred to as the welfare checklist

The Leading Case

The leading case on relocation following the Children Act 1989 is Payne v Payne which was decided in 2001. Consideration was given to the earlier case of Poel. In her judgment, Dame Elizabeth Butler-Sloss suggested that consideration should be given to the following issues, amongst others:-

• The welfare of the child
• That there is no presumption in favour of the parent applying to relocate
• That reasonable proposals by the relocating parent carry great weight
• Proposals have to be scrutinized with care and the motivation for the move needs to be genuine rather than simply to bring contact between the child and the other parent to an end
• The effect of a refusal on the applicant parent and child
• The effect of the consequent denial of contact on the other parent and child
• The opportunity for ongoing contact

Recent Criticisms

In July 2009 Dr Marilyn Freeman on behalf of the the organisation Reunite published a detailed research document into the issues regarding application for relocation of children. The research reported that despite the 1989 Act many interviewees were disappointed about the legal service and representation they had received, as the tone of such advice leaned in favour of the relocating parent and almost encouraged the other parent to take a defeatist attitude and be happy with trying to arrange good contact with the child in question.

2010 also  saw two cases which appeared to challenge the general position taken by the courts and indicated that there could be a sea change in the way that courts consider such applications..

The first case, Re: AR involved a mother's application to  relocate to France, taking her son with her. Mr Justice Mostyn said that the child “has a strong emotional need to have a meaningful participation in his upbringing by his father and this would be adversely affected were the child to be relocated to France". The judge therefore ruled that relocating to France would be damaging to the child and therefore the mother’s application was refused.

Also in 2010 the case of F(children) saw a mother wanting to relocate to one of the Orkney Islands from the town of Cleveland. This application although considered as an internal relocation was refused by the court who again ruled that such a move would not be in the best interests of the four children involved.

The Future holds…

The decisions of the courts in 2010, coupled with the report of 2009 and some disquiet within the profession as to the direction that the courts were taking in relation to relocation applications led many to believe that the perceived bias in favour of relocating parents following the decision in Payne may be coming to an end and that there may now be greater scope for the other parent to successfully argue that a relocation would be damaging to a child. However, any such conclusion has to be tempered by the more recent judgment of the court of appeal in W (children) where a relocation application was allowed on appeal and the Payne factors were specifically approved. 

As the Court is faced with increasing applications from parents wishing to relocate where a child enjoys a full relationship with both parents sharing substantial time with each there remains a significant conflict between the strong desire of one parent to relocate and the strong desire of the other to maintain meaningful conflict with the child. The test remains that as set out in Payne, in conjunction with the welfare checklist but questions remain as to the extent to which one or other of these factors should influence the court's final decision and as to how the concerns raised by Dr Freeman should be addressed.

Anest Mathias is a solicitor in the family department at Osbornes. If you have any questions regarding the above or would like advice on any other family issue please e-mail Anest or call us on 0207 485 8811

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