The Difficult Balance Between Relocation and the Best Interests of the Child – Case Note on Re V

Re: V (Appeal: Relocation) [2024] EWHC 2600 (Fam)

Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, examines the recent judgment of the High Court in Re V (Appeal: Relocation) [2024] EWHC 2600 (Fam) and explores the approach in relocation cases.

Full Judgment can be found here.

The Court was concerned with the question of whether to allow a child to relocate following her mother securing employment in another city, the appeal raised issues of procedural fairness, the handling of cross-examination, and the delicate balancing act required when determining the best interests of a child in relocation cases.

Facts

The parents, who at the time of the appeal both lived in Southern England, shared care of their daughter under a joint lives-with order made by HHJ Simmonds in August 2023, with the child spending 8 out of every 14 days with her mother and the remaining time with her father. There are no safeguarding concerns and both parents were acknowledged to be capable of meeting their daughter’s needs.

In February 2024, the mother made a specific issue application seeking permission to relocate with the child to the Midlands, having secured a full-time position. However, just before the hearing, the Respondent changed her plans and proposed moving to a city in the North of England to take up a part-time permanent position. Following a two-day hearing, Recorder Southern permitted the relocation, varying the joint care arrangements to reflect the Respondent’s new working hours and location.

The father, the Appellant, sought permission to appeal, challenging both the process and the substance of the Recorder’s decision. His grounds of appeal were based upon procedural irregularity in cross-examination, an erroneous finding that relocation was a “binary decision,” and factual errors in assessing the Respondent’s need to relocate for work.

Legal Background

The case brought into focus the long-established principles governing relocation and procedural fairness in family law proceedings. Relocation cases, whether internal or external, are governed by the paramountcy of the child’s welfare under section 1 of the Children Act 1989, with the court applying the welfare checklist to determine the outcome. As set out in Re C (Internal Relocation) [2015] EWCA Civ 1305:

“…the proper approach to the whole issue of relocation may be stated in summary as follows:

a)  There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.

b)  The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child.

c)  In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.”

On reviewing the law upon procedural fairness, Ms Justice Henke reminded the Court of P (A Child: Fair Hearing) [2023] EWCA Civ 215 where it was stated that:

“It is a fundamental principle, rooted in the common law concept of natural justice and reflected in the ECHR, that a legally valid decision can only spring from a fair hearing. If a hearing is unfair, a judgment cannot stand…”

The Court also restated the factors considered in Re C (Children: Covid 19: Representation) [2020] EWCA Civ 754, which reviewed the aspects relevant to the common law and Article 6 rights to a fair hearing:

“(1)  Fairness is case-specific and is to be assessed in relation to the proceedings in their entirety.

(2)  There must be protection not only from actual unfairness but also from the risk of unfairness.

(3)  The right of access to the court must be effective, so that the individual has the opportunity to address all material that might affect the court’s decision and is placed in a position to call evidence and to cross-examine.

(4)  The importance attached to the welfare of the child must not prevent a parent being able effectively to participate in the decision-making process.

(5)  The principle of equality of arms entails a reasonable opportunity to present one’s case, including one’s evidence, in a way that does not place one at a substantial disadvantage to one’s opponent.

(6)  The administration of justice requires not only fairness but the appearance of fairness. However, the misgivings of individuals with regard to the fairness of the proceedings must be capable of being objectively justified.

(7)  The determination must be made within a reasonable time: Article 6 itself.”

The Appeal

The appeal focused on two broad areas: procedural fairness and whether Recorder Southern had correctly exercised her discretion in granting the relocation. The Appellant argued that the Recorder’s interruptions during cross-examination prevented a fair hearing, thus violating his Article 6 rights. He also argued that the Recorder erred in considering the decision to relocate as a “binary” one, failing to consider a third option, namely that the Respondent could continue commuting while the child remained in the South of England.

Ms Justice Henke, in reviewing the appeal, acknowledged that Recorder Southern’s interruptions were not ideal but held that they did not amount to procedural unfairness. The judge maintained that Recorder Southern had allowed sufficient cross-examination on the key issues and was entitled to manage the trial to ensure efficiency. The Recorder’s decision to characterise the relocation as a “binary” one was explained in her judgment as referring to the ultimate decision – whether the child should move or not. While the use of the term “binary” could have been clearer, the judge found that this did not indicate a closed mind, and that the Recorder had given due consideration to the welfare checklist and the third option proposed by the Appellant.

Commentary

The decision in Re V highlights the finely balanced nature of relocation cases and the complexities involved in weighing a child’s welfare against the interests of the parents. Ms Justice Henke’s judgment underscores that appellate courts are reluctant to interfere with findings of fact made at first instance unless they are plainly wrong. The Judgment draws on established principles from Piglowska v Piglowski [1999] 1 WLR 1360, reiterating that appellate courts should not subject first-instance decisions to a narrow textual analysis, especially when the trial judge has had the advantage of hearing live evidence and assessing the credibility of the parties firsthand.

One of the most striking aspects of the appeal was the Appellant’s argument that Recorder Southern had wrongly confined her decision to a binary choice. Relocation cases, as noted in Re C (Internal Relocation), often present a stark choice between permitting or denying a move. However, this case illustrates the importance of considering alternative arrangements, such as commuting, especially where, as here, the parent seeking relocation has been commuting regularly for work. Ms Justice Henke acknowledged that the Recorder had considered the third option in her judgment but ultimately found that the Respondent’s evidence – that she would not take the job if required to commute – made this option unrealistic.

Another key issue raised in the appeal was the Recorder’s finding that the Respondent’s motivation for relocating was genuine and not an attempt to undermine the child’s relationship with her father. Relocation cases often involve a degree of tension between the parents, and it is vital that the court scrutinises the motivations behind such applications. In this case, the Recorder was satisfied that the Respondent’s desire to relocate was driven by professional considerations, not by a wish to limit the Appellant’s role in the child’s life.

Relocation cases present some of the most challenging decisions in family law. Judges must balance the emotional, psychological, and logistical impacts of a move on the child, while also considering the rights and wishes of both parents. The welfare of the child remains the paramount consideration, but in practice, this can be difficult to determine when both parents are capable, loving, and involved in the child’s life. The paramountcy of the child’s voice is brought into question in such cases when principles in Payne are still considered, notably the impact upon the proposed relocating parent should permission to relocate be refused

In Re V, the court’s approach reflects the need for a careful, holistic assessment of the facts, but it also demonstrates that such decisions are often very finely balanced.

Those representing parents in these cases must ensure that reasonable alternatives to relocation are explored, including the possibility of commuting or other arrangements that minimise disruption to the child’s life. Courts, too, must remain vigilant in ensuring that the child’s welfare is genuinely prioritised. As relocation cases often involve conflicting parental interests, it is essential that the child’s voice, either through a Guardian or otherwise, is not lost in the process. Decisions about relocation can have long-term consequences for the child’s emotional and psychological well-being, and the courts must ensure that all options are fully considered before a final decision is made – what is best for the parents, might not ultimately be what is best for the child. The judgment in Re V reaffirms the principle that relocation decisions are highly fact-specific, and that the discretion of the first-instance judge should not be easily displaced. Though it serves as a reminder of the need for scrutiny of both the legal and practical aspects of relocation, particularly where alternative solutions may be viable. The question of what is in a child’s best interests in such cases will always depend on the unique circumstances of the family, but this exercise should not be one where the best interests of the overall family or the parents is elevated to the same level as what is in the best interests of the child.