H (Children), Re

Where a residence order is in force, section 13(1)(b) of the Children Act 1989 means what it says: leave is required to remove a child from the United Kingdom, not merely to move within it. Internal relocation remains subject to the court's welfare jurisdiction. A dispute must be decided under the paramount welfare principle, using a prohibited steps order or, within its severely limited scope, a condition under section 11(7). The internal-relocation test is less stringent than the external-relocation test. A no-order approach is unavailable where competing applications require a judicial decision. Article 8 and the Human Rights Act 1998 did not alter the established relocation test. Highly exceptional facts do not create a general precedent.

The father was the children's primary carer following the parents' separation. The mother sought residence and orders preventing the father's proposed move with the children to Northern Ireland. The father sought residence and permission to relocate.

The Gloucester County Court granted the father a full residence order, dismissed the mother's cross-application and prohibited removal to Northern Ireland except for holidays exceeding 14 days. The father appealed, arguing that section 13(1)(b) did not apply to internal relocation, that the court lacked power to prevent the move, and that the relocation test had been wrongly applied.

Appeal dismissed unanimously. The order was upheld, with no order as to costs and public-funded assessment.

1. Statutory construction. Thorpe LJ held that the unqualified expression United Kingdom in section 13(1)(b) of the Children Act 1989 includes Northern Ireland. The sidenote to section 13, the provisions concerning extension to Northern Ireland and the delegated legislation power did not alter that meaning. Astill J agreed, treating section 13 as clear.
2. Internal relocation. A residence-order holder does not need leave under section 13(1)(b) to relocate within the United Kingdom. Nevertheless, an objecting parent may apply for a prohibited steps order under section 8 or seek a condition under section 11(7). The power to prevent internal relocation by imposing a condition is severely limited.
3. Applicable test. The welfare of the children is paramount in every relocation case. The test for internal relocation is less stringent than for external relocation. The court must still determine the dispute where negotiation or mediation has failed; a no-order outcome is not available simply because section 13 does not require an application. Thorpe LJ treated the approach in Payne v Payne [2001] EWCA 166 as governing and held that the decision reported as Re X and L (Leave to remove from the jurisdiction: no order principle) [2001] 2 FCR 398 should not be followed.
4. Equality and appellate review. Thorpe LJ stated that male and female primary carers must be treated alike. The Recorder's conclusion was securely founded on evidence that relocation would seriously damage the children's relationship with their mother and make meaningful contact almost impossible. There was no error justifying appellate interference. The case was highly exceptional and was not a precedent for cases with a different factual matrix.

• Court of Appeal (Civil Division): On appeal, dismissed the father's challenge to the Gloucester County Court's prohibition on removal to Northern Ireland: [2001] EWCA Civ 1338.
• Gloucester County Court: Mr Recorder Greenwood granted the father full residence, dismissed the mother's cross-application and prohibited removal to Northern Ireland except for holidays exceeding 14 days.