Put another way, in so far as some of the previous cases appeared to say that internal relocation applications would be restricted only in ‘exceptional’ circumstances, that is no longer the approach. As with an international relocation case, the court will need to consider the practicalities of the rival proposals, the motivation of the parents, the practicality of maintaining the child’s relationship with the non-moving parent if the move goes ahead, the child’s views about the rival proposals, and so on. Put more broadly, the correct approach is to look at the entire case in welfare terms, comparing the rival proposals which are before the court in a holistic and non-linear manner (Vos LJ at para [82]).
As part of this overall welfare analysis, the court should consider the proportionality of any of the proposed outcomes in Art 8 terms. This is not a separate analysis: rather it is ‘an essential part of the balancing exercise itself’, incorporated into the entire thinking process and not being allowed to disrupt the judge’s ‘joined-up decision-making process’ (para [84]).
Discussion
Re C is an important case which clears up a lot of confusion about the correct approach to an internal relocation case. While the ‘exceptionality’ approach has been on the back burner for some time, significant doubt had remained about the validity of those authorities, not least since the most recent internal relocation case,
Re M (A Child) [2014] EWCA Civ 1755, had appeared to endorse ‘exceptionality’ as the continuing approach. Re C helpfully clarifies that these cases are no longer to be followed, and instead the approach is welfare down the line, informed by the same kinds of considerations as apply to international relocation cases.
It was never clear why internal relocation cases were approached do differently from their international counterparts. As Black LJ points out in
Re C (paras [19]-[25]), it is difficult to discern any logical reason for this distinction, and those attempts which have been made in the past fail to provide a convincing answer. The decision to do away with the distinction entirely is therefore welcome.
A further important clarification to come from
Re C relates to the overall approach that we are to take to international relocation cases as well. There was some debate about whether there had been any change to the law in that area following
Re F (International Relocation Cases) [2015] EWCA Civ 882. Black LJ’s judgment makes clear that she does not consider Re F to have made any difference to the approach set out by
K v K and other earlier international relocation cases.
Finally we see some further clarification about the on-going role of
Payne v Payne, now potentially applicable in a limited way to both international and internal relocation cases. It is interesting to note that in her summary of the approach, Black LJ does not refer to Payne at all, focusing instead on
K v K and the two
Re F cases. However, given the reliance placed by the trial judge upon the Payne factors in
Re C, it is unsurprising that the Court of Appeal commented that this reference was permissible ‘as part of [the] overall evaluation of the case’ (para [65]). As Bodey J said in his short concurring judgment:
‘a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne; but not as a prescriptive blueprint; rather and merely 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.’ (para [85(c)])
Overall,
Re C is a welcome decision bringing a degree of clarity to this increasingly important area of the law.
The new edition of Relocation: A Practical Guide by Rob George, Frances Judd QC, Damian Garrido QC and Anna Worwood will be published by Family Law in early 2016, fully re-written to include Re C and other important recent developments in relocation law.
See also
Rob's column, Last Orders: the View from the Bar, a regular monthly feature in Family Law. In the January issue Rob gives secure accommodation for vulnerable young people – and much else – his individual treatment. And there will be more on Re C in the February issue. Don’t miss it.
