E (Minors), Re

A residence order should not normally be conditioned on the children remaining at a specified address within the United Kingdom where the parent granted residence is a suitable carer. The question of where the children will live should instead be considered as part of the competing residence applications. Location and proposed arrangements may be important, particularly where the case is finely balanced or a proposed move would be against the children’s wishes and less suitable for them. The principles governing permanent removal from the jurisdiction do not apply to conditions under section 11(7) of the Children Act 1989. Residence conditions may remain appropriate in exceptional private-law or public-law circumstances.

The mother appealed from an order of the Bow County Court dated 13 September 1996. Although the judge made a residence order in her favour, he required the children to continue living at the former matrimonial home in London unless the court or the father agreed otherwise in writing. The condition was imposed under section 11(7) of the Children Act 1989, applying by analogy the principles governing permanent removal from the jurisdiction. The mother’s proposed arrangements in Blackpool were satisfactory, and she was found to be the better parent to care for the children. The central issue was whether the court could use a residence condition to control the place within the United Kingdom where suitable resident parents lived with their children.

Lady Justice Butler-Sloss delivered the reasons for judgment. Lord Justice Saville and Lord Justice Thorpe agreed. The appeal was allowed unanimously.

1. The definition of a residence order in section 8 of the Children Act 1989 concerns the person with whom a child is to live. It is not identical to custody. The parent with whom the child lives generally has the greater say in day-to-day arrangements, including the home, relationships and school, while the other parent retains parental responsibility.
2. Section 11(7) is wide enough in language to permit a restriction to a specified place within the United Kingdom. However, imposing such a restriction on a suitable parent in whose favour the court intends to make a residence order is generally an unwarranted interference with that parent’s choice of where to live and with whom. Exceptional private-law cases may justify conditions where there are concerns about the parent’s ability to provide satisfactory care and no better solution exists. Public-law cases may raise different considerations.
3. The decision in Re D (Minors)(Residence: Imposition of Conditions) [1996] 2 FLR 281 applied with equal force. A section 11(7) condition could not be used to exclude another person from the mother’s home and thereby control her private life.
4. The place where the children will live must be considered as a factor within the competing residence applications, not as a separate issue. If the case is finely balanced, the parents’ proposals assume considerable importance. On these facts, the mother’s satisfactory arrangements and superior care outweighed the advantages of retaining the children in London.
5. The principles governing leave to remove children permanently from the jurisdiction had no application to a section 11(7) condition. The mother should not be required to remain in London because of the father’s unreliable contact. Reasonable contact could include substantial school-holiday and half-term periods rather than frequent long-distance weekend journeys.
6. The parties’ cross-undertakings, given pending the long-term decision, were spent at the substantive hearing. It was unjust to continue holding the mother to hers. The residence condition was set aside, the contact order was replaced by an order for reasonable contact, and both parties’ costs were subject to legal-aid taxation.

• Court of Appeal (Civil Division): Appeal from the Bow County Court allowed. The residence condition was set aside, and the contact order was replaced by an order for reasonable contact.
• Bow County Court: Residence order made in favour of the mother, subject to a condition requiring the children to remain at the former matrimonial home in London unless otherwise ordered or agreed in writing by the father.