An analysis of RE F (INTERNAL RELOCATION) [2010] EWCA Civ 1428 CA, and its impact within children act proceedings (28 October 2011)

By Maria Dagcevizi

The correct way to deal with a parent’s objection to internal relocation is by issuing a Prohibited Steps Order (PSO). As with all s.8 contested applications, when deciding whether the court should make an order, the court will examine the welfare principle under s.1(1) of the Children Act 1989, and the welfare checklist under s.1(3) of the children Act 1989.

The Court of Appeal made it clear in Re E (residence: Imposition of Conditions) [1997], that s.11(7) of the Children Act 1989 applies to all section 8 applications, and as such applies to a PSO. The court is therefore able to prohibit the relocation of the resident parent, or to impose a condition that they reside within a particular location. In Re: E, Lady Justice Butler-Sloss, stated that Parliament had not intended the general imposition of conditions on where the resident parent would live, however, she stated that there might be exceptional circumstances which would justify the imposition. Thus the test of ‘exceptionality’ was born.

The ‘exceptionality test’ was reiterated in Re:S (A Child) (Residence Order: Condition) (No 2) [2002 EWCA Civ 1795, where Lady Justice Butler-Sloss referred to the ‘principle’ enunciated in Re: E, that the court ought not to impose a condition on a residence order, save in exceptional circumstances. s.11(7) was described as a ‘safety net’ that the court could use in ‘exceptional’ circumstances, where the welfare of the child required it.

The recent case of RE F (Internal Relocation) [2010] EWCA Civ 1428 CA, appeared to be retreating from this early requirement that circumstances should be exceptional to justify a condition on where a child should live. In this case the mother sought to relocate from the north-east to the Orkney Isles, with the four children. The parties had divorced in 2005, and the father had generous and regular contact with the children.

The judge at first instance refused the mother’s application and held that the case was ‘truly exceptional’ in that the move was not significantly different to a move out of the jurisdiction. This was based on the considerable distance between the two locations, and the complexity of the route. It was determined that a move would result in the children suffering ‘emotional harm’. The mother appealed the decision; however the court of appeal dismissed her application.

The court of appeal stated that although settled authority suggests the welfare test should be applied to establish whether circumstances were exceptional, this was a gloss on the welfare test and not required under s1(1) or s.1(3) of the Children Act 1989. Lord Justice Wilson stated that he had been bound by authority when concluding that this case was ‘exceptional’, and that he did not agree with the case being described as such.

The recent decision in Re: F marks a more cautious approach by the courts, and suggests that future cases should be decided on the basis of the welfare checklist. The suggestion was that previous cases on internal relocation, and the need to determine ‘exceptionality’ had taken the courts away from the intention of parliament.

So, from a practical perspective, when advising clients on the issue of internal relocation, practitioners should always consider whether there are any factors which might render the case exceptional, which could lead to the courts placing a condition under s.11 (7) CA 1989. The difficulty of course being that what is ‘exceptional’ is not comprehensively defined in law. Practitioners should also bear in mind that the welfare checklist will always apply.