F (Children), Re

In an internal relocation application, the court must determine the children’s welfare under section 1 of the Children Act 1989, giving proper weight to each child’s wishes and feelings, needs for stability, existing relationships and the practical sustainability of contact. The welfare analysis must not be reduced to the proposed destination alone. Although the Court of Appeal regarded the established language of exceptional circumstances as an impermissible gloss in principle, it considered itself bound by authority to use that framework. Relocation may properly be refused where the combined circumstances involve gross upheaval, serious disruption of contact and arrangements contrary to strongly expressed wishes, particularly where a child has heightened needs for stability and support.

The mother, the primary carer of four children, applied for a specific issue order permitting their home to be moved from Cleveland to Stronsay in the Orkney Islands. The father opposed the move but accepted that the children would remain living with the mother if it was refused. The parents agreed a substantial travel-based contact schedule if relocation were allowed.

The Middlesbrough County Court, sitting through Mr Recorder Bullock, refused the application on 30 July 2010. The mother appealed, arguing that the recorder had misapplied the principles governing internal relocation, had given insufficient weight to the children’s wishes, and had relied improperly on anticipated emotional harm. The central issue was whether the recorder’s welfare-based refusal was plainly wrong or involved an error of principle.

1. Appeal dismissed. The recorder’s refusal of permission to relocate was within his welfare discretion. The children were firmly rooted in Cleveland, frequent paternal contact was important, and the proposed journeys made the sustainability of contact uncertain.
2. The court’s provisional view was that, where the objecting parent initiates proceedings to prevent relocation, the appropriate relief is a prohibited steps order. A condition attached to a residence order would not provide the express and enforceable prohibition sought. The court also considered the effect of section 9(5) of the Children Act 1989.
3. The principles governing internal and external relocation are not necessarily identical. The external-relocation authorities should not simply be applied to internal relocation, but the effect of refusal on the aspiring parent may receive some weight because it may indirectly affect the children. This point was not necessary to the outcome.
4. Existing authority required the court to ask whether the circumstances were exceptional. The court considered that, absent binding authority, exceptionality might be an impermissible gloss on the welfare inquiry under sections 1(1) and 1(3) of the Act.
5. The recorder was entitled to find exceptional circumstances in the combination of factors. These included the scale of the lifestyle change, disruption of home, schools, friendships and activities, uncertainty about sustainable contact, and the children’s conflicting wishes. Particular weight was required for G, whose needs made stability, routine, support and paternal contact especially important. The recorder was entitled to forecast emotional strain and harm from the evidence, without expert evidence.
6. The court stated that the children’s welfare required dismissal of the application. It also criticised the recorder’s unreasoned grant of permission to appeal, which had caused substantial additional expense and prolonged uncertainty.

• Court of Appeal (Civil Division): [2010] EWCA Civ 1428. Appeal dismissed.
• Middlesbrough County Court: Mr Recorder Bullock refused the mother’s specific issue application for internal relocation on 30 July 2010.