A (A Child), Re

In an application concerning a child’s proposed removal to another country, the child’s welfare remains the paramount consideration under Children Act 1989, section 1. Cultural and religious background is a relevant factor, but it does not displace the duty to assess the child’s wishes and feelings, relationships, needs, parental capacity and the likely effect of a change in circumstances. Those factors must be balanced with the Convention rights of the child and both parents. The Court of Appeal will not interfere where the first-instance judge has carried out that evaluation carefully. Permission to appeal should be refused where the proposed appeal has no real prospect of success.

The father, a Nigerian Muslim, sought permission to appeal against orders made by Her Honour Judge Darwall Smith in the Bristol County Court on 2 March 2001. The judge had refused his application to take or send his eight-year-old daughter, S, to Nigeria to be cared for by his relatives with her sister. S had lived with her mother in England since the end of 1996 and had little contact or established bond with her father.

The application also sought an extension of time and permission to adduce further evidence. The central issues were whether the judge had applied the correct law, properly evaluated S’s welfare and cultural and religious background, and reached a conclusion with which the Court of Appeal could interfere.

1. Application refused. The father’s application for permission to appeal, extension of time and permission to adduce further evidence was refused because any appeal had no real prospect of success.
2. The proceedings were properly governed by English law because S had been resident in England since the end of 1996. Under section 1 of the Children Act 1989, her welfare was the paramount consideration.
3. The first-instance judge correctly considered the relevant welfare factors. These included S’s cultural and religious background, wishes and feelings, each parent’s capacity to meet her physical, material, emotional, developmental and educational needs, and the likely effect of removal and other changes in her circumstances. Cultural background was relevant but was only one factor in the overall assessment.
4. The judge was entitled to attach substantial weight to S’s settled, caring and successful life with her mother, the absence of a developed emotional bond with her father, the disruption of her relationship with her mother and sisters, and the father’s inadequately developed plan. The conclusion that removal would be contrary to S’s welfare was one with which the Court of Appeal could not possibly interfere.
5. The judge had also balanced the rights of the father, mother and child under the European Convention on Human Rights. The father’s views could prevail if all three agreed, but the mother’s and child’s rights required respect where they did not.

• Court of Appeal (Civil Division): On 3 July 2001, permission to appeal, an extension of time and permission to adduce further evidence were refused.
• Bristol County Court, Family Division: Her Honour Judge Darwall Smith refused on 2 March 2001 the father’s application to take or send S to Nigeria.
• Cardiff County Court: On 20 July 2000, District Judge Wyn Rees made a residence order that S should live with her mother.