The practicalities of parenting apart after a divorce or separation are a challenge for any family but what happens when one party decides to move away from the area permanently?
This issue was explored in the recent case of Re C (Internal Relocation)  EWCA 1305. The mother had successfully applied to the court for an order allowing her to move with her daughter from London to Cumbria while the child’s father, from whom she had separated, remained living in London. The reason given for granting the order was that remaining in London was “much less conducive to C’s well-being than is the move to Cumbria”.
The father appealed (unsuccessfully) but the Court of Appeal’s judgment helpfully tied up a few loose ends which had existed in this area of family law.
Historically the court’s approach had been to distinguish between cases where the move was out of the jurisdiction (external relocation) and cases where the move was within the United Kingdom (internal relocation).
With external relocation the application by the parent wishing to move is based on the Children Act 1989 section 13 (b) which says that when there is a child arrangements order in force, no one may remove the child from the United Kingdom without the consent of the other parent or permission from the court.
With internal relocation the application is brought under section 8 of the same Act for a specific issue order. This is where the court is asked to decide ad hoc disputes when parents cannot agree over the issue in question.
The leading case on external relocation is Re K (Children)  EWCA Civ 793. In this case, about a removal to Canada, the court said that the child’s welfare was the most important factor. The so called ‘Payne Factors’ as stated by Lord Justice Thorpe in Payne v Payne  EWCA Civ 166 were said to be guidelines only. Those factors were:
“(a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.”
In internal relocation cases the state of the law prior to Re C was that there was a general reluctance to place restrictions on the freedom of the child’s primary carer since these restriction were likely to have an adverse effect on the child indirectly (it was noted in Re E (Residence: Imposition of Conditions)  EWCA that restriction might be necessary where the ability of the primary carer to give satisfactory care was in doubt).
The first loose end tied up by Re C was that there should be no distinction between cases involving the relocation of a child within the jurisdiction and those where a parent seeks to relocate with a child to another jurisdiction. The decision in either type of case hinges ultimately on the welfare of the child.
Of the Payne guidelines it was agreed that some or all of the considerations are likely to be helpful, not as a prescriptive blueprint but as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.
The question of a principle of exceptionality had previously arisen in the case law on internal relocation where the relocation of a child could only be prevented in exceptional cases. A possible illustration of exceptionality appears in Re F (Children)  EWCA Civ 1428, also known as the ‘Orkney case’. In this case the mother wished to relocate with her four children and new husband from Cleveland in the North East of England to Stronsay, one of the northernmost islands in Orkney. The recorder in the first instance said: “What the mother is proposing can be properly described as ‘truly exceptional’. It is as close to a case of removal from the jurisdiction as one could possibly get. Stronsay must be one of the most remote inhabited places in the United Kingdom”. The planned contact arrangements with the father described travel by plane, ferry, train and car lasting between 9 and 19 hours. This application and the subsequent appeal were unsuccessful.
In Re C however it was confirmed that there was no such “exceptionality” rule. The parent objecting to the move does not have to demonstrate exceptional circumstances to prevent a relocation application.
The final issue to be ironed out was that of the interference with either party’s human rights as conferred by the Human Rights Act 1998, for example Article 8, the right to family life. The judges in Re C concluded that there was no obligation upon a court to consider whether the resulting interference with Article 8 rights of a parent was proportionate. Consideration of each parent’s Article 8 rights “should be an essential part of the balancing exercise itself and should not be undertaken separately so as to disrupt a joined up decision making”.
In other words, the welfare of the child is always the trump card. It leaves uncertainty as there is no hard and fast rule and judges all have a discretion but it gives flexibility to the court to consider a bespoke child-centred outcome to each case.