Re R (Child)  EWCA Civ 1016 and Relocations Within the Jurisdiction
Claire Molyneux, Senior Associate at Mills & Reeve LLP, considers an interesting review and reiteration by the Court of Appeal of the approach to be taken in relocations of an internal nature.
Re R (Child)  EWCA Civ 1016 is an interesting read for practitioners. It arose from an application made by a father to return his child, H, home from the North East to Kent pending the outcome of properly contested internal relocation proceedings. Although ultimately unsuccessful, father’s counsel sought to broaden the application of the law in relation to internal relocation, or, as categorised by the Court of Appeal, “internal abduction.”
The case was set in the context of internal relocation cases as they have evolved to date. Most recently, in 2015, the Court of Appeal heard the case of Re C (Internal Relocation)  EWCA 1305. Within her judgment, Lady Justice Black set out a helpful and detailed review of earlier cases addressing internal relocation and provided clarification about the correct approach to applications of this nature.
By way of reminder, the guidance from Re C can be summarised as follows:
- There is to be no distinction between the considerations to be applied to cases of internal and external relocation. They hinge on the welfare of the child. The approach set out in K v K (Relocation: Shared Care Arrangement)  EWCA Civ 793,  2 FLR 880, Re F (Relocation)  EWCA Civ 1364 and Re F (A Child) (International Relocation Cases)  EWCA Civ 882 should apply equally to internal relocation cases (per para 11).
- The Payne factors [ie derived from Payne v Payne  EWCA Civ 166] do not reflect the gender-neutral approach that the court now adopts in every case. The Payne factors are not excluded, however, and may be of “helpful utility”. Their purpose is to serve as guidance only, and they do not form part of the applicable test or the applicable principles (per para 83).
- The only consideration is the paramountcy principle as to the welfare of the child. There is to be an holistic balancing exercise undertaken with reference to the welfare checklist, even when the checklist is not statutorily applicable e.g. in relation to a section 13 application. The exercise of decision making must necessarily involve a balancing of all relevant factors, which may vary hugely from case to case, with the ultimate objective of affording paramount consideration to the welfare of the child (per para 82).
- There is no test of “exceptionality” as a pre-requisite in cases concerning internal relocation, i.e. that there must be exceptional reasons for a court to interfere with the rights of parents who wish to relocate, with children, within the jurisdiction. While the courts will be resistant to preventing a parent from exercising his or her choice as to where to live in the United Kingdom, that is not as a result of any test or principle of exceptionality, and flows only from a properly reasoned welfare analysis (per paragraph 53).
- The principle of proportionality is engaged in relocation cases (internal and external), and should be applied in accordance with the approach taken in Nazarenko v Russia (Application No 39438/13)  2 FLR 728, per para 63, namely:
“Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, primary importance should be attached to the best interest of the child, which, depending on their nature and seriousness, may override those of the parents.”
In other words, the likely impact on each parent is a relevant factor to consider and weigh into the balance, but only in the context of evaluating and determining the welfare of the child.
Against this backdrop, the case of Re R came before the Court of Appeal, on appeal by the father. As in Re C, the leading judgment was given by Lady Justice Black.
The parties met in 2013, and began living together in Kent at the end of that year. Their child, H, was born in June 2015. Mother suffers from a medical condition, and consequently it is reported that H remains under medical supervision until such time as it is determined whether he has inherited it. The parties separated in January 2016, when the mother left the family home with H and returned to live with her parents in the North East. At the time of the appeal, she had moved to new accommodation in close proximity to her parents. Her case was that she had left because the father had behaved abusively towards her.
The father requested the mother’s return to Kent, with H. When she refused to do so, father’s solicitor put mother on notice that he would apply to the court for an order that H return. In the meantime, mother made a without notice application to a district judge for a prohibited steps order to prevent father from removing H from her care. Her application was granted.
Father made his application and the matter came before District Judge Grey. The first consideration of the judge was as to whether H should return to Kent, pending the outcome of proceedings, or be permitted to remain in the North East. With reference to the guidance enunciated in Re C, father’s legal representatives advanced an argument that there should be no distinction in approach between cases in which a child is unilaterally removed within or outside of the jurisdiction i.e. that H should be ordered to return home, forthwith, while the family court in Kent determined the issues between the parents.
The judge applied the welfare principle with reference to the welfare checklist and determined that H should remain in the North East pending a final outcome of proceedings. The judge weighed all factors into the balance, and ultimately concluded that allowing Mother to stay in the North East would not result in “any irrevocable steps which might prejudice the Father’s application.”
Father appealed, and the matter came before Judge Heaton. Having considered the matter, and even in accepting a point that the district judge had erred in overlooking the father’s offer to move out of the accommodation in Kent (to allay the mother’s fears of harm), Judge Heaton was satisfied with the reasoning of the district judge.
Before the appellate court
And so the matter came before the Court of Appeal, during which interesting and novel arguments were advanced to the appellate bench on behalf of father. The heads of appeal were as follows:
- The Re C argument might naturally be developed further. If there is no distinction in the considerations applied to internal and external relocations, the same should apply when a parent “removes” a child internally without first obtaining the other parent’s or the court’s prior consent. This was termed “internal abduction” by the Court of Appeal.
- A repeat of the argument that father put before Judge Heaton, in which father stated that the district judge had failed to take account of his offer to move out of the family home in Kent for the period of time in which the matter was being determined. This would allay any fears mother had as to her safety.
F’s arguments on appeal
F’s legal team advanced a number of novel propositions:
- In support of a summary return of all children in “internal abduction” cases. The status quo should be restored whilst a decision is made, and that this would usually be in the child’s best interests. “The court should deprecate abductions and give a strong message to parents that return is the order of the day.”
- To draw an analogy with habitual residence in relation to countries, and as between Kent and the North East, with an invitation that an order for summary return might provide for a return to the “place of the child’s usual residence.”
- If a summary return was not the inevitable outcome in such circumstances, one parent could gain an advantage over the other by simply relocating without seeking the proper consent (either from the other parent, or the court).
- The court should take account of the disruption caused to the child by an uncovenanted move and the profound impact that it has on the relationship between the left behind parent and the child.
The decision of the Court of Appeal
The father’s appeal was dismissed. Black LJ was clear: internal and external relocations are to be distinguished from internal and external Hague type abductions (per para 13).
- There should not be, as a starting point, a general principle that summary return must occur to the place where the child was formerly resident unless there are good welfare reasons why that should not happen (per para 18).
- Cases heard in these circumstances are likely to come before the court pursuant to a section 8 application. Where that is so, section 1(1) and 1(3) of the Act will apply, such that the outcome will be determined by a consideration of the welfare principle and the welfare checklist. It is not for the court to impose new principles, and it is for Parliament to impose such rules or guidelines in legislation if it so chooses, such as the introduction of section 1(2A). The section 1 considerations ensure the correct outcome, and each case would be considered on its individual facts (per para 19).
- In applying the statutory welfare principles, and the welfare checklist, sometimes the right order will be to return the child immediately to where he or she was living before his or her parent took him or her away, so that normal life can be speedily resumed whilst the future is sorted out. Sometimes, the right course will be to leave the child where he or she is until matters can be investigated further. If necessary, and in the absence of enough information, the judge may have to make a series of interim orders (per para 21).
- In these circumstances, there should be no generalisations or non-binding presumptions as to what is likely to be in the child’s best interests”. [This approach was supported by the Intervenor in the case.]
- The case of Re J  may be of assistance. In that case, the consideration was in relation to an international abduction case outside of the 1980 Hague Convention. In those circumstances, the starting point for courts of this jurisdiction is not Hague principles. The starting point/governing principle is welfare, and that may or may not result in an order for a child’s summary return. In a domestic abduction case, as in a non-Convention international abduction case, the judge must derive the answer by applying section 1(1) of the Children Act to the particular facts of the case before him, having regard to all the relevant features, including the matters listed in section 1(3) (whether because the circumstances are within section 1(4) of the Act or otherwise by analogy). There is no imported presumption or rule of thumb dictating summary return unless there are shown to be good reasons to the contrary (per para 27).
- In reaching his decision, Judge Heaton applied both the correct principles and the right factors. The appellate court is slow to interfere with the trial judge’s evaluation of the facts and his application of the balancing exercise, which have been entrusted to him by law. In these circumstances, the case could be determined while the mother remained in the North East – returning to Kent may have had an adverse impact on the mother, and therefore on H, and the relationship between H and father could be preserved in the meantime.
Where are we left following Re R? In the case, the court lent further support to an approach that shies away from any judicial glosses on the statutory considerations.
In an internal type relocation matter, the approach taken by the court will be to seek an outcome that places the child’s welfare as paramount, the determination of which is by reference to the statutory checklist. The suggestion that a relocation without the necessary prior parental consent, or permission of the court, could be aligned with an international Hague abduction type case was given short shrift: the most the court would do was to indicate as helpful the approach taken in an international abduction situation in which there is a non-Hague Convention country to consider. In those cases, the courts return to section 1 Children Act 1989 and its statutory considerations to assist with their determination.
In these cases then, how do we advise? Arguably, giving a clear steer as to outcome is going to be more of a challenge. For example, there is to be no application of the principle of exceptionality, i.e. that only in exceptional cases will a parent be prevented from making an internal move. Neither will there be a starting presumption of a summary return of a child to its place of residence while the court makes a determination as to the place of a child’s future residence.
As practitioners, this leaves us with a reference point of section 1 Children Act and its statutory checklist. As stated in Re C, this involves a balancing of all relevant factors, which will vary, often significantly, in each case, and does not involve any one factor ranking superior to another. In the judgment, the court points out that very often this may result in an interim order providing for a resumption of normal life i.e. where the child has lived to date, pending the outcome of a properly determined application, and possibly this may be by way of a series of interim orders. We will have to advise on the basis of a detailed consideration of the welfare checklist, and ensure our client’s cases are thoroughly prepared with an assimilation of all the relevant background and supporting information.
Situations such as the one in Re R are by no means rare, but not something we encounter every day – certainly not in the context of an individual seeking advice on the eve of a proposed move across country, or immediately thereafter. Most commonly, a solicitor may be asked to advise about a proposed move at some point in several months’ time (commonly, though, with insufficient time to allow a section 8 application to run its full course), or perhaps they will be asked to represent a client on the receiving end of an application to return children pending the outcome of a properly contested application. On occasion parents move and just hope it will be accepted by the other (who may only then apply to seek appropriate time to spend with a child/children moving forward). Alternatively a parent may not have considered the legal implications of a move.
Some cases will be clearer on the face of it, whilst others will be a little more ambiguous. In Re R, the situation lent itself to a continuance of the new living arrangements because of the potential risk to the mother, the young age of the child, and the fact that the father’s relationship with H would not be compromised pending a final determination. One could argue though, that a different judge at first instance might have provided for the return of H. Had H been any older, and more established in patterns and routines connecting him to Kent e.g. attendance at school, the decision would likely have been different.
Overall then, whilst it is more difficult to steer clients in accordance with judicially indicated starting points, it is conceivably most fair to assess each case on its own merits with reference to section 1 Children Act and its welfare checklist. The best we can do is to advise clients about the ordinarily correct approach to a proposed relocation. In ideal circumstances, they will be seeking the prior permission of the other parent, and applying on notice in advance of the move. If there is an urgent need to move, it can be addressed as it was in this case, and the outcome will be entirely fact specific.
A final thought is that where a matter has an element of urgency, bear in mind the option of a child law arbitration. A binding and fully reasoned decision is made, but in the fraction of the time in a context in which the parties are in full control. More information about the process of arbitration can be found on IFLA’s website: www.ifla.org.uk