International Child Relocation in England and Wales: An Introduction

International mobility today is influenced by various contemporary trends, particularly the rise in multicultural families, technological advancements, migration policies and geopolitical factors, amongst others. Consequently, international relocation cases are increasingly common, with one parent seeking to permanently remove a child from the jurisdiction against the wishes of the other parent.

Simultaneously, there has been a marked shift in the court’s approach to child arrangements post-separation, with the starting point being that it is in the child’s best interests for the care to be shared equally, provided there are no safeguarding issues or evidence to the contrary. There is a statutory presumption that, unless the contrary is shown, the involvement of both parents in the child’s life will further the child's welfare (Sections 1[2A] and 1[2B] of the Children Act 1989).

These factors have made relocation proceedings more complex, and they are now often considered the most challenging cases, given the emotions and stakes involved.

This article explores the trends and developments in international child relocation in England and Wales.

When do these cases arise?

The circumstances prompting such an application are most typically as follows:

• relationships – where a parent has remarried or is in a new relationship with a person who lives abroad or is relocating abroad;
• employment – where a parent has been offered a job in another jurisdiction;
• return to roots – where a parent who is originally from a different country, wishes to return “home”; and
• lifestyle – where a parent wants to relocate on the basis that life would be better abroad.

The law

No one can relocate a child out of the jurisdiction without prior written consent of every other person with parental responsibility or permission of the court.

If the parties cannot reach an agreement, an application would need to be made to court for permission.

Judicial approach

The judicial approach to international child relocation in England and Wales is fundamentally rooted in the welfare principle, enshrined in Section 1 of the Children Act 1989. The child’s welfare is the court’s paramount consideration.

The court also considers the factors set out in the welfare checklist (Section 1(3) of the Children Act 1989), which are:

• the ascertainable wishes and feelings of the child concerned (considered in light of age and understanding);
• physical, emotional and educational needs;
• the likely effect of any change in circumstances;
• age, sex, background and any characteristic the court considers relevant;
• any harm the child has suffered or is at risk of suffering;
• how capable each parent is of meeting the child’s needs; and
• the range of powers available to the court.

The court must not make an order unless it considers that doing so would be better for the child than making no order at all (Section 1(5) of the Children Act 1989).

Prior to the introduction of the statutory presumption of parental involvement in 2014, it was expected to be easier for the “primary caregiver” (often the mother) to obtain permission to relocate the child. This was, in part, also due to the landmark case of Payne v Payne [2001] EWCA Civ 166, which was the leading authority for many years. In Payne, the Court of Appeal set out the following guidance to judges in determining leave to remove applications:

• the welfare of the child is always paramount;
• there is no presumption in favour of the applicant parent;
• the reasonable proposals of the parent with a “residence order” (no longer in existence) wishing to live abroad carry great weight;
• proposals have to be scrutinised with care, and the court needs to be satisfied that there is genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end;
• the effect on the applicant parent and the new family of the child of a refusal of leave is very important;
• the effect on the child of the denial of contact with the other parent and, in some cases, their family is very important; and
• the opportunity for continuing contact between the child and the parent left behind may be very significant.

The judicial approach has since evolved, with recent cases indicating a shift towards a more nuanced and balanced application of the welfare principle, reflecting a broader recognition of the complexities involved in relocation cases.

While the Payne guidelines remain somewhat influential, subsequent cases have refined the approach, emphasising a more holistic consideration of the welfare principle. The current leading cases are the Court of Appeal’s decisions in K v K (Relocation: Shared Care) [2011] EWCA Civ 793, Re F (Relocation) [2012] EWCA Civ 1364 and Re F (A Child) (International Relocation) [2015] EWCA Civ 882.

• In K v K, the Court of Appeal warned against elevating the guidance in Payne to the status of rigid principles of law, highlighting the limitations of the guidelines, particularly in cases where both parents are actively involved in the child’s life. The court emphasised the importance of a comprehensive analysis of the welfare factors, rather than a formulaic application of the Payne principles. This case marked a significant step towards a more balanced and flexible approach to relocation cases, and established that applications are to be determined on welfare principles alone.
• In Re F [2012], the Court of Appeal reaffirmed the importance of the welfare principle as the paramount consideration in relocation cases, stressing that each case must be decided on its own facts and that the Payne guideline should not be applied rigidly. This case highlighted the move towards a more individualised assessment of the child’s best interests.
• In Re F [2015], the Court of Appeal confirmed that Re F [2012] represented the current law in respect of any application for permanent international relocation and was the starting point. It reaffirmed that the child’s welfare is the paramount consideration and marked a move from categorising cases into “primary care” or “shared care” cases. It highlighted the impact of the statutory presumption of parental involvement, which heightened the court’s scrutiny of the arrangements proposed by each parent and stressed the necessity for the overall, comprehensive analysis of a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the welfare checklist.

Case law update

In Re K (A Child) [2020] EWHC 488 Fam, Williams J suggested a composite guidance to help the court identify relevant issues, which considered the Payne guidance, welfare checklists, holistic evaluation and proportionality evaluation.

This included the following.

• The ascertainable wishes and feelings of the child, considered in light of age and understanding.
• Physical, emotional and educational needs.
• The likely effect of change in circumstances, including:
1. changes to housing, schooling and relationships if remaining in England;
2. how likely it is for the plan to be implemented as proposed;
3. positive effects in relation to removing a parent’s ability to care for the child if the child moves abroad;
4. positives and negatives about the proposed destination country in terms of environment, education and links with family;
5. the impact on the child of moving permanently to another country in relation to their relationship with the left-behind parent and other extended family; and
6. the extent to which this impact may be offset by ongoing contact and extension to other relationships in new country.
• The child’s age, sex, background and any characteristics considered relevant.
• Any harm the child has suffered or is at risk of suffering, which overlaps with the effects of change and includes:
1. the impact on the child of the change of relationship with the left-behind parent;
2. how secure that relationship is and how likely it is to endure and thrive if the child moves;
3. how realistic the proposals for maintaining contact are;
4. the impact on the moving party of having to remain in England contrary to their wishes, and the consequent impact on the child;
5. the impact on the left-behind parent of the child moving;
6. whether the ability of either parent to provide care for the child will be adversely affected by the refusal or grant of the application and, if so, to what extent; and
7. the extent to which loss of contact with the left-behind family will be made up for by the extension of contact with the family in the new country.
• The capability of the parents to meet the child’s needs, including:
1. how the parents are currently meeting the child’s needs;
2. whether there are any aspects of their ability that may be important in the context of a relocation – for instance, their capability of meeting the emotional needs of the child for a relationship with the left-behind parent;
3. whether the relocation application is wholly or partially motivated by a desire to exclude or limit the left-behind parent's role;
4. whether the left-behind parent’s opposition to the move is genuine or motivated by a desire to control, or by another malign motive;
5. whether the parent would be better able to care for the child in the new country than in England; and
6. the role that the left-behind parent can play in the future.
• The range of powers available to the court under the Children Act 1989, including:
1. whether conditions of contact can be imposed in terms of the provision of funds or the frequency of visits; and
2. whether court orders can be made in the other country – either mirror orders or orders that will allow reciprocal enforcement.

Approach where a parent had previously removed a child without consent

In Re Z (Relocation) [2012] EWHC 139, a mother was granted permission to relocate to Australia. The father had previously wrongfully retained the child in Belgium for 11 months. The Judge found that the father’s wrongful retention had been emotionally devastating for the mother, and this was a persuasive factor in deciding the application in her favour.

Conversely, in Re X, Y and Z (Children) (Retrospective Leave to Remove from the Jurisdiction) [2016] EWHC 2439 (Fam), the High Court gave retrospective permission to a mother to temporarily remove the children to Spain, despite a return order being made in 1980 Hague proceedings. The court held that it would not be in the children’s best interests to stay the mother’s application and permit the enforcement (ordered in Spain following several unsuccessful enforcement attempts).

It is far better to seek leave to remove than to remove a child without consent and be subject to a return order following 1980 Hague proceedings. A parent who “takes the law into their own hands” and wrongfully removes and retains a child jeopardises a relocation application as it puts into question the motivations for such an application and whether the parent wishing to relocate can be trusted to maintain, promote and facilitate a relationship with the left-behind parent.

Approach where there are numerous children

Each child’s welfare and interests should be considered separately and individually (Re S (Relocation: Interest of Siblings) [2011] EWCA Civ 545). This means that there may be different outcomes for different children, with the relocation of one being permitted, and not of the other.

Approach where older children are involved (16+)

The court has been reluctant to make orders for older children, considering it “inappropriate and even futile” to make orders that conflict with the wishes of older children (Re C (Older Children: Relocation) [2015] EWCA Civ 1298).

The wishes and feelings element of the welfare checklist is given significantly more weight when it comes to older children.

The court also weights the “No Order Principle” (Section 1(5) of the Children Act 1989) heavily when a matter concerns older children, questioning whether the making of any order can be justified in the circumstances.

However, the courts do intervene and can make a decision contrary to an older child’s express wishes and feelings when relocation is not considered to be in the child’s best interests (Re N-A (Children) [2017] EWCA Civ 230).

Approach where domestic abuse is an element

The court presumes that parental involvement in a child’s life will further the child’s welfare. As society becomes more educated and aware of domestic abuse and the impact it has on children and parents, this presumption is questioned. Since 2017, the court has had a responsibility to consider whether domestic abuse is an issue in each individual case and whether a fact-finding hearing is necessary through Practice Direction 12 J.

The increased awareness of domestic abuse and the court’s approach to domestic abuse have also had an impact on international relocation cases. Practitioners used to strongly advise against making allegations of abuse when a parent wanted to relocate. This was because there was a risk that the application would not succeed by linking the motives to a desire to remove the other parent from the children’s lives.

The common practice used to be a concentration on the positives of the relationship between the non-relocating parents to propose a generous and workable plan for contact between children and the non-relocating parent that would not be weakened by the physical distance between them.

This practice of hiding the abuse in the relationship to strengthen the application for relocation is finally fading. There are more cases in which the disclosure of abuse has resulted in a fact-finding hearing and limited, supervised contact between the children and the non-relocating parent. A wish to relocate because of the abuse that you might have been subjected to in your personal relationship is no longer an impediment. This reinforces the position that the court’s approach in these cases will be to consider the child’s welfare.

Unfortunately, there is no leading authority on this issue and many practitioners continue to minimise the abuse or advise against its disclosure, believing it will jeopardise the chances of succeeding with relocation.

Where are we now?

At present, the welfare of the child is the paramount consideration, with each case being decided on its own facts following a child-focused, global, holistic analysis of the proposals (and counterproposals) and the impact of a decision on the child.

The proper approach is for the court to have available to it all the options proposed by the parents as the appropriate outcome, having regard to the child’s paramount welfare. Each parent's proposals are carefully scrutinised and weighed up, alongside the welfare checklist, in a comparative evaluation. The key headlines can be summarised as follows.

• There is a need for a holistic examination of all the competing options (as reaffirmed in Re M (A Child) [2017] EWCA Civ 2356 and Re C (A Child) [2019] EWHC 131 (Fam)).
• The court must not determine the best arrangements for the child before determining an application for relocation. The pros and cons of each realistic option must be considered. The analysis must not be compartmentalised (L v F (Relocation: Second Appeal) [2017] EWCA Civ 2121).
• The same principles apply regardless of the motivations for the application, although a proposed relocation to a familiar environment (ie, return to home) sets a lower bar than a relocation to a new country (ie, lifestyle) (Re F and H (Children) [2007] EWCA Civ 692).
• The courts are alive to the right of the child to have a meaningful relationship with the active involvement of both parents in their upbringing, considering the presumption of parental involvement.
• Scrutiny of the motivation and genuineness of the application is necessary.
• An evaluation of the proportionality may be necessary, given the gravity of the impact on the relationship between the child and the non-relocating parent and the subsequent interference in the Article 8 ECHR rights of the parents.

Recent cases have shown an increased focus on the following.

• Child’s voice – recent cases have placed a greater emphasis on the child’s voice (subject to age) in relocation proceedings. This aligns with the principles of the United Nations Convention on the Rights of the Child, which emphasises the right of the child to express their views freely in matters affecting them.
• Technological advancements – the rise of technology has significantly impacted the landscape of international child relocation, with the availability of video calls making it easier for children to maintain meaningful relationships with the non-relocating parents. While this does not replace direct face-to-face contact, courts are increasingly inclined to consider virtual contact arrangements as a means of preserving the child’s relationship with the non-relocating parent.
• Global mobility and international treaties – courts are mindful of the potential for international abduction and the need to ensure that relocation orders are enforceable in the destination country. There is a more cautious and thorough examination of relocation proposals, including the necessity to consider the possibility of reciprocal enforcement or mirror orders being in place as a safeguard.
• Psychology and developmental considerations – there is a growing recognition of the psychological and developmental impact of relocation on children. This was brought into focus following a research paper (Relocation: the Reunite research, 2009) that looked into the impact on children as a result of the loss of a relationship with the left-behind parent. Courts are more attuned to the potential emotional and psychological effects of separation from a parent and the importance of stability and continuing in the child’s life. This awareness has contributed to a more child-centred approach in relocation cases.
• Domestic abuse and international relocation – applications to relocate when there have been findings of domestic abuse are succeeding. Allegations of abuse did not used to be disclosed, on the assumption that good parental communication and relationship would be needed to succeed in relocating. This is no longer the practice and we are in need of a leading authority in this aspect.

Where next?

Following the International Judicial Conference on Cross-Border Family Relocation in Washington, DC (part of the Hague Conference on Private International Law) in March 2010, the Washington Declaration on International Family Relocation was made, which provided that there should be no presumption either way in international relocation cases, which should be decided on welfare principles.

In 2015, the Council of Europe published Recommendation CM/Rec (2015) 4 adopted by the Committee of Ministers on preventing and resolving disputes in child relocation. The document mirrored the principles and conclusions of the Washington Declaration.

The issue of international relocation was added to the agenda in the 8th Special Commission on the Hague Convention 1980 and Hague Convention 1996. One of the authors was invited to present a comparative study that highlighted the lack of provisions in domestic legislation for international relocation, the length of those proceedings, the lack of consistency on the principles applied and the lack of knowledge of the Washington Declaration 2010. It was added to the conclusions that the Hague Conference would send a questionnaire to Signatory Members on relocation for continued work on the issue.

Conclusion

The recent trends and case law reflect a nuanced, discretionary approach that prioritises the child’s best interests while adapting to the changing global contexts. Practitioners must stay informed about legislative developments, case law and practical strategies to prepare and navigate these complex cases effectively.

With continuing globalisation shaping family dynamics, the evolution of international relocation cases will remain a critical area of focus in ensuring the well-being of children and families.

The judicial approach has evolved over time. At present, the correct approach remains that the only principle that these cases should be decided on is in accordance with the welfare of the child, following a global, holistic welfare evaluation of each and every option, compared against each other to determine where the child’s interest lies.