B (A Child)

A court should restrain a primary carer from relocating with a child within the United Kingdom only in a truly exceptional case. The principles governing permanent removal from the United Kingdom do not govern an internal relocation restriction imposed through a prohibited steps order or a condition attached to a residence order.

The proposed place of residence should instead be considered as part of the overall determination of competing residence applications. The court must apply the paramount principle of the child’s welfare while recognising that an unjustified restriction on the carer’s freedom of choice is likely to affect the child adversely.

The mother appealed from an order of Mr Recorder Phillips in Huddersfield County Court prohibiting her from moving the child’s usual residence from Huddersfield to Northern Ireland. The father had sought a prohibited steps order under Children Act 1989, Section 8, and a residence order. The residence application was withdrawn at trial, and the Recorder made no residence order.

The Recorder approached the internal relocation dispute by reference to the principles governing applications to remove children from the United Kingdom. The central issue was whether that was the correct legal approach, or whether an internal relocation restriction was permissible only in the exceptional circumstances identified by the authorities concerning Section 11(7) conditions.

1. Permission to appeal was granted and the appeal was allowed unanimously. The Recorder’s order was set aside and the case remitted for an expedited retrial before an experienced family judge. The Recorder had decided the finely balanced dispute upon an unsustainable direction of law: paras 10–15.
2. A move from England to Northern Ireland does not require leave under Section 13 of the Children Act 1989, because it is a move within the United Kingdom. A dispute about such a move may nevertheless be determined through an application for a prohibited steps order under Section 8 or a condition under Section 11(7): paras 3–4.
3. Following Re E [1997] 2 FLR 638, a restriction upon a primary carer’s choice of residence within the United Kingdom is a truly exceptional order. Although Section 11(7) is wide enough to permit such a restriction, its general use was not contemplated by Parliament. Ordinarily it would impose an unjustified restriction upon the carer’s liberty and would be likely to affect the child’s welfare adversely: paras 6–10 and 15.
4. The principles in Payne v Payne [2001] 1 FLR 1052, which govern relocation beyond the United Kingdom, do not apply to a proposed Section 11(7) restriction upon internal relocation. Re H [2001] 2 FLR 1277 had not stated the distinction sufficiently clearly. Its outcome was explicable because mental health evidence placed that case within the exceptional category recognised in Re E: paras 7–8 and 13.
5. The correct approach is to assess the proposed place of residence as a relevant factor within the determination of competing residence applications, rather than as a separate question. Where the residence decision is finely balanced, the respective plans may assume considerable importance. A proposal contrary to the child’s wishes or involving a less suitable location may support a residence order in favour of the other parent: para 9.
6. The retrial was to be managed by HHJ Hunt or another judge in his team, with an expedited CAFCASS report. Setting aside the order revived the father’s residence application: para 12.

1. Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed unanimously. The prohibited steps order was set aside and the proceedings were remitted for an expedited retrial.
2. Huddersfield County Court: Mr Recorder Phillips prohibited the mother from transferring the child’s usual residence to Northern Ireland, while permitting holidays there. He made no residence order after the father withdrew his residence application.