The High Court (HC) recently heard an appeal against a Family Court Order (FCO) permitting a mother to relocate with her child.
Background:
The father and mother met in 2015 and were married in 2018. However, they separated in mid-2022, yet continued to live together for the remainder of the year, although they are now getting divorced.
They had a daughter, who is not yet in full-time education, who has been living under a Joint Lives Order since August 2023. She currently spends 8 of every 14 days with her mother, while the holiday periods are shared equally between the parties. Upon conclusion of the previous proceedings, the mother agreed to a Prohibited Steps Order (PSO) which provided that she would not relocate with the child outside the area in which they were then living without the father's written permission or a court order.
In February 2024, the mother filed a Specific Issue Application (SIA) seeking permission to relocate with the child within the jurisdiction. However, in April 2024, the intended relocation changed to a city located in the North of England, where she sought a part-time permanent position.
The mother was successful at the first instance and was given permission to relocate with the child to the North. The order also contained a variation of the time the child spends with her father to accommodate the mother’s new work pattern. The child would live with the father from 6 pm on Monday to 6 pm on Wednesday and the week after from 6 pm on Saturday until 6 pm on Wednesday until the child attended school. The father appealed.
Decision:
Ms. Justice Henke first noted that the law concerning parental relocation was well-established and that the child’s welfare was of paramount consideration. The Court also explained the proper approach that an Appellate Court (AC) should take, according to Fage UK Ltd v Chobani UK Ltd [2014] and applying the principles of Piglowska v Piglowski [1999]. The appeal was found against the Recorder’s exercise of their discretion.
Turning to the Recorder’s decision, it was deemed to be both fair and balanced. The Recorder made a ‘global, holistic evaluation of the best interests of the child’ which included a thorough application of the welfare checklist.
The wishes and feelings of the parents were considered as well as the impact on the child. The Recorder also considered Article 8 of the European Convention on Human Rights (ECHR) in relation to both parents and the child as well as the proportionality of any interference in the parents' Article 8 rights.
The appeal was, therefore, purely based on a questioning of the facts which cannot be re-evaluated by the AC.
Implications:
This case highlights the importance of welfare but also the need for the Court to carry out a balancing exercise.
Divorcing couples can request an order to relocate if there is a good reason, including taking up employment, even if it means that the child arrangement order in place will need to be altered. The rights of both parents will be duly considered as well as their rights under Article 8 ECHR.
This decision also provides guidance as to the precise role of the Appellant Court and the limit of their review.