Relocation, Relocation – Court of Appeal clarifies law
Bulletin Winter 2016
Regardless of the circumstances of the breakdown of a relationship, where there are children, the need to co-parent remains in all but the rarest of cases. In some circumstances, however, real issues come to the surface when one party wants to relocate with the children. Recently, the Court of Appeal has clarified the law in relation to internal relocation cases where one party wishes to move to a different part of the UK but the other party objects. In the case of Re C (Internal relocation) [2015] EWCA Civ 1305 the father was appealing against an order obtained by the mother permitting her to move with their daughter (“C”) to Cumbria from London. At first instance, the court found that remaining in London was “much less conducive to C’s well-being than is the move to Cumbria.” The father appealed, and the Court of Appeal unanimously rejected it. The Court also gave some helpful guidance on the law to be applied to relocation cases. Prior to Re C, the law had suggested that in internal cases, the parent who is left behind would have to demonstrate “exceptional circumstances” in order to prevent a move. However, the Court of Appeal has now confirmed that there is no distinction between international and internal cases. The only principle that is to be applied is that the child’s welfare is paramount. Giving the leading judgment, Lady Justice Black stated that she “would not interpret cases as imposing a supplementary requirement of exceptionality in internal relocation cases”. Lady Justice Black noted that relocation results in an inference with the rights under article 8 (respect for one’s established family life) for one party. However, there is no obligation on the court to consider whether the resulting interference with the Article 8 right was proportionate with the court’s decision, having carried out an analysis of the impact of the welfare considerations. When making an application to relocate with a child, consideration needs to be given as to how the child’s relationship with the parent left behind will continue. It is arguable that the closer that parent is geographically, the easier it will be to put in place practical arrangements to ensure the continued relationship. However, the legal principle remains the same, whether the relocation is internal or international. The court is unlikely to prevent a parent from choosing where to live within the UK unless the child's welfare requires it. However, this is not because there is a rule that such a move can only be prevented in exceptional cases. Rather, it is because the welfare analysis, which takes into account the impact on the parent wishing to move and the consequential impact on the child, leads to that conclusion. Any relocation application, whether internal or international, will be fraught with emotion due to its very nature. The impact on the parents will, to an extent, impact the child’s emotional wellbeing, and this will therefore be a factor. An interference with article 8 is virtually unavoidable. The question is which parent’s right to family life will be interfered with? If it is the parent objecting to relocation, care must be taken to ensure arrangements are put in place to ensure the child can continue a meaningful relationship with that parent, notwithstanding the physical distance between them. Such consideration would clearly be in the interests of the child’s welfare. London in particular is a city which attracts people from across England and the world. The break -up of relationships often see one party wanting to relocate with the children. This judgment will have particular consequences in those situations where one party looks to relocate, whether internally or externally, and helping clients to achieve practical solutions is key to enabling the ongoing co-parenting of children.
Contact the authors:
Alan Kaufman Consultant: Private Client & Family T: +44 (0) 20 3755 5538 E: alan.kaufman@howardkennedy.com
Lois Langton Partner: Private Client & Family T: +44 (0) 20 3755 5559 E: lois.langton@howardkennedy.com
Immigration, Divorce and Separation Immigration remains a highly sensitive and political issue. The matter was brought to the foreground, yet again, when net migration figures for the UK were released in June 2015. According to the Office for National Statistic, net migration was 336,000 for the year ending June 2015. For a foreign national, your immigration status in the UK could be one of the most complex and stressful aspects of your residence. Should your family relationships break down, this could have an impact on this rather important matter. The key is to understanding how family breakdowns could affect your relationship. If you are residing in the United Kingdom as the partner of a British citizen (or a person with Indefinite Leave to Remain) then your permission to reside in the United Kingdom would have been granted under the Immigration Rules. In this context it is important to bear in mind that your right to remain is intrinsically linked with your ability to demonstrate, to the Home Office, that you are in a subsisting relationship with a qualified person (i.e. a British national or person with Indefinite Leave to Remain). If your relationship with your partner were to break down then the Home Office may take the view that you are not permitted to reside in the UK any longer. This includes the concept of trial separation. Should you have British children with your partner then it may be prudent to switch from the partner/spouse category to the parent category. If the relationship were to break down permanently then the foreign national partner would be required to leave the United Kingdom immediately (unless they can apply to remain in the UK in an alternative category). If, in the alternative, you are residing in the United Kingdom as the partner of an EEA national then your permission to reside originates from EU law (which is implemented in the UK via the Immigration (European Economic Area) Regulations 2006). European Union law takes a much more pragmatic approach to the concept of separation in family relationships as the European courts believe that reconciliation is always a possibility and therefore an individual should be continued to remain in the relevant Member State. Forcing the non-EEA national to leave because of a separation between them and their partner would cause an otherwise temporary separation to become more permanent. However, should the relationship permanently breakdown (i.e. through divorce proceedings) then the non-EEA national would have to demonstrate that they have retained a right to reside in the United Kingdom. There are a number of methods in which retained right of residence may be demonstrated (relating either to the length of marriage, residency, children or exceptional circumstances like domestic violence). It is therefore to key to remember that there the implications of divorce or separation may be different depending on the basis upon which leave to remain was granted in the United Kingdom.
Habitual residence – Supreme Court ruling ends children being in limbo The Supreme Court has this week handed down an important decision concerning a young child who was unilaterally taken abroad by her mother to Pakistan. The child (“B”) was born in England in 2008 to a British mother (of Pakistani ethnicity) following IVF treatment. The mother was in a same sex relationship with her partner who was also British (of Indian ethnicity). The parties had never married or entered into a civil partnership but had lived together as a couple. Following the acrimonious breakdown of the couple’s relationship, the mother and B relocated to Pakistan, without the mother telling her former partner of her decision.
The ex-partner sought orders for shared residence of and contact with B but the application was dependent upon her being able to show that B was “habitually resident� in England. Both the High Court and the Court of Appeal said that the English Courts did not have the jurisdiction to hear the application because, as she was living in Pakistan, B was no longer habitually resident here. However, on appeal, the Supreme Court overturned those decisions and said that B was habitually resident in England. Lord Wilson, giving the lead judgment, said that the traditional English law approach had been to focus heavily on parental intention. Indeed, the Courts have previously found that habitual residence can be lost in a single day. The Supreme Court has now brought the law on this area into line with European decisions and has placed the focus on the circumstances and interests of the child rather than the intention of the parent. This decision will now reduce the possibility of children being left in a state of legal limbo and no court being able to deal with issues concerning their welfare. This decision of the Supreme Court will have significant and far-reaching consequences for the many international and mobile families that exist in 21st century England. This was the first case involving removal of a child in a same sex family, and the decision represents an acknowledgment by the Court of modern day family structures.
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