Re: S (A Child)

A court may use section 11(7) of the Children Act 1989 to restrict the geographical area in which a child lives. Such a condition is justified only in a genuinely exceptional case. The absence of the condition must be incompatible with the child's welfare.

The court must assess the proposed location as part of the overall welfare decision. It must not impose a restriction merely to improve upon otherwise suitable arrangements. The assessment must balance the disadvantages of relocation against the effect of restricting the primary carer's ordinary freedom, including the resulting impact upon the carer, any new partnership and, indirectly, the child.

The mother was the primary carer of a child with Down's Syndrome, serious medical problems and particular educational needs. She proposed to move from Croydon to Cornwall with her new partner. The father initially sought contact, a prohibited steps order and, contingently, a residence order, but did not pursue the latter applications at the hearing.

The Croydon County Court nevertheless made a residence order in the mother's favour so that it could impose a condition requiring the child to remain within Croydon. The judge considered the child's vulnerability, the likely disruption to education and family contact, and the decision in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638. He held that the circumstances were exceptional.

The mother appealed. The central issue was whether the restriction was lawfully and properly imposed under section 11(7) of the Children Act 1989.

1. Appeal allowed unanimously and matter remitted. Thorpe and Clarke LJJ agreed that the county court had paid insufficient attention to the impact upon the mother of being required to remain in Croydon and to the consequential effect upon the child.

2. Section 11(7) of the Children Act 1989 is sufficiently wide to permit a geographical condition upon a residence order. Such a condition lies outside the ordinary use of the power. The court should not ordinarily dictate where a primary carer lives within the United Kingdom.

3. Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 established that restrictions of this kind are permissible only in genuinely exceptional cases. A court must not impose one merely because a child's proposed arrangements are less than ideal or because another arrangement might produce an optimum outcome.

4. Thorpe LJ considered that the exceptional power would probably be confined to an unforeseen case in which a primary carer's ability to provide satisfactory care required the support of a section 11(7) condition. Clarke LJ did not regard the examples in Re E as exhaustively limiting the power to cases involving concern about the carer's capabilities. He held that a case cannot be exceptional unless the absence of the condition would be incompatible with the child's welfare. Both judges agreed upon the restrictive character of the jurisdiction.

5. The location proposed by each parent must be assessed as part of the overall welfare evaluation. The court must balance the disadvantages of relocation against the disadvantages caused by restricting the primary carer's ordinary adult freedom. The latter assessment includes the emotional and psychological effect upon the carer, the needs of a new partnership and the resulting effect upon the child.

6. Restrictions upon internal relocation should be approached at least as restrictively as applications to remove a child from the United Kingdom. Internal relocation does not require the primary carer to satisfy the more stringent requirements governing international relocation.

7. The expert evidence addressed the child's educational vulnerability and the harmful consequences of reduced contact, but did not assess the wider family dynamics or the effect of preventing the move. The mother's stated willingness to obey an order established her responsibility, not the personal or welfare consequences of compliance. A fresh welfare assessment was therefore required.

1. Court of Appeal (Civil Division): The mother's appeal was allowed unanimously and the matter was remitted to the county court for reconsideration. No order was made as to costs. [2001] EWCA Civ 847.

2. Croydon County Court: His Honour Judge Ellis made a residence order in the mother's favour and imposed a condition that the child continue to reside within the Borough of Croydon unless the court otherwise ordered. The judge granted permission to appeal.