Re F (Children: Internal Relocation)
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Year | 2010 |
| Date | 2010 |
| Court | Court of Appeal (Civil Division) |
Internal relocation – Specific issue order – Exceptionality – Parents having four children together – Parents divorcing but continuing to live in same part of England – Mother being children’s primary carer and father having regular contact – Mother seeking permission to relocate to Orkney Islands with children – Father and three children opposing relocation – Judge finding case ‘exceptional’ and dismissing application – Whether judge erring.
The parents married in 1995 and divorced in 2005. They had four children: (i) A, a boy, born in 1996; (ii) G, a boy, born in 1997; (iii) R, a girl, born in 1999; and (iv) T, a boy, born in 2001. G was dyspraxic and mildly autistic. After the divorce, both parents remarried but continued to live in the same town in England. The mother was the children’s primary carer, but the father had regular contact. In March 2010, the mother and the children’s stepfather accepted a job-share on one of the Orkney Islands. The children were taken to visit the island, and a learning support assistant from the school which they would attend travelled to their schools in England to speak to them and their teachers. In due course, the mother applied to the court for a specific issue order permitting her to relocate to the island with the children. She placed before the court a proposed schedule of contact which she and the father had agreed in the event that her application were to be allowed. According to the schedule, the children would make seven return trips per year from the island to stay with the father in England. Four possible routes were suggested, the longest taking 19 hours and the shortest around nine hours. Each involved at least two modes of transport, and some would require an overnight stay on the return leg. Also before the court was a report from an independent social worker who had interviewed the children to ascertain their views on the proposed move. In those interviews, R, who had been reluctant to have frequent contact with the father, expressed her enthusiasm for the proposal. A stated that the best option would be for the family to remain where they were, so that at least some people would be happy. G stated that he would not go and that, even if the others went, he would remain with his father. T said that he thought the move a ‘bad idea’, and that he didn’t want to move ‘all the way up to Scotland’ while his father was in England. The recorder held that the proposed move could be described as ‘truly exceptional’, being ‘as close … to a case of removal from the jurisdiction as one could possibly get’. Concluding that it would constitute ‘a huge emotional strain’ for the
children and that it would cause them ‘emotional harm’, he dismissed the mother’s application. On appeal by the mother, an issue arose, inter alia, as to the test to be applied in internal relocation cases.
Held – No one could quarrel with a proposition that it would rarely be in the interests of a child for the residential parent to be prevented from moving home with the child within the UK. However, by the time of the Court of Appeal’s decision in Re S (a child) (residence order: condition) (No 2)[2003] 1 FCR 138 exceptionality had become part of ‘the principle’. The recorder had thus rightly asked himself whether the circumstances were so exceptional as to justify refusal of the mother’s application; his answer had been that they were. Even prior to the service of the social worker’s report, the mother’s application had been fraught with difficulty. All four children had been born and brought up throughout their lives in the same English town and could not have been more firmly rooted there. Their contact, or at any rate that of the boys, with the father on a frequent basis, was patently important for them; and the tortuous nature of their proposed contact journeys placed an obvious question-mark against the very sustainability of the arrangements for contact which both parents had ultimately agreed to be in principle in the interests of the children. Even as it stood prior to service of the report, the evidence thus clearly militated against a conclusion that it would be in the interests of the children to make the move. Once the report was served, the application became almost unarguable. When mature, intelligent children had conflicting views, it was as impossible for the court as it was for parents to accommodate all of them. However, regard had to be paid to the strength of views articulated not only by R in favour of the move but also by T against it. Regard had to be paid to the mature ambivalence articulated by A and, in the light of G’s particular needs for support, stability, routine and paternal contact, his views were even more in need of consideration than those of the others. In light of the gross upheaval which the move would precipitate for the children and of the fact that, in the case of G, T and to a lesser extent of A, the mother would be imposing upon the children, even at their relatively advanced ages, permanent living arrangements entirely contrary to their own wishes, the recorder had been entitled to forecast emotional strain and harm for them. In the circumstances, the children’s welfare required the dismissal of the mother’s application. The appeal would therefore be dismissed (see [25]–[26], [35]–[37], below); Re E (Minors) (Residence: Conditions)[1997] 3 FCR 245 considered and Re S (a child) (residence order: condition) (No 2)[2003] 1 FCR 138 applied.
Per curiam. Were the Court of Appeal not bound by authority to rule that, in internal relocation cases, the analysis of the child’s welfare, informed by consideration of the matters specified in s 1(3) of the Children Act 1989, should be conducted through the prism of whether the circumstances are
exceptional, the court might have wished to suggest that a test of exceptionality was an impermissible gloss on the inquiry mandated by s 1(1) and (3) of the 1989 Act (see [26], below).
Per curiam. Where the initiative to place the matter before the court is taken by the parent who objects to relocation, the relief appropriately to be sought is a prohibited steps order (see [23], below); Re B (Prohibited Steps Order) [2008] 1 FLR 613 considered.
Cases referred to in judgmentsB (Prohibited Steps Order), Re[2007] EWCA Civ 1055, [2008] 1 FLR 613.
Currey v Currey[2006] EWCA Civ 1338, [2007] 1 FLR 946.
E (Minors) (Residence: Conditions), Re[1997] 3 FCR 245, [1997] 2 FLR 638, CA.
H (children) (residence order: condition), Re[2001] EWCA Civ 1338, [2001] 3 FCR 182, [2001] 2 FLR 1277.
L (a child) (internal relocation: shared residence order), Re[2009] EWCA Civ 20, [2009] 1 FCR 584, [2009] 2 All ER 700, [2009] 1 FLR 1157.
R (on the application of M) v Haringey Independent Appeal Panel[2010] EWCA Civ 1103, [2010] All ER (D) 102 (Oct).
S (a child) (residence order: condition) (No 2), Re[2002] EWCA Civ 1795, [2003] 1 FCR 138.
S (a child) (residence order: condition), Re[2001] EWCA Civ 847, [2001] 3 FCR 154.
AppealThe mother appealed against the refusal of Mr Recorder Bullock, sitting as if in the Middlesbrough County Court on 30 July 2010, to grant her application, opposed by the father, for a specific issue order permitting her to move with their four children (in respect of whom she was the primary carer) from England to the Orkney Islands. The facts are set out in the judgment of Wilson LJ.
John Myers (instructed by Ward Hadaway, Newcastle) for the mother.
Elizabeth Lugg (instructed by Goodswens, Redcar) for the father.
27 October 2010. The following judgments were delivered.
WILSON LJ.[1] A mother appeals against the refusal of Mr Recorder Bullock, sitting as if in the Middlesbrough County Court on 30 July 2010, to grant her application for a specific issue order. The order which she sought was that, as the primary carer of four children, she should be permitted to move their home within the UK, namely from their present home with her in a town in Cleveland to the island of Stronsay, which is one of the Orkney Islands. The father of the children, who also lives in the town in Cleveland, opposed her application. In that, however, the mother has at all times made clear that,
were her application to be refused, she would continue to provide the home for the children in Cleveland, there was no question of any move by the children to the home of the father.
[2] The four children are a boy, A, who was born on 6 May 1996 and is thus aged 14; a boy whom it will be convenient to describe by the initial of his...
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