S (A Child), Re

A suitable parent entrusted with a child’s primary care ordinarily has the right to choose where and with whom to live within the United Kingdom. A court may impose a condition restricting that choice only in a genuinely exceptional case, where the absence of the condition would be incompatible with the child’s welfare.

The categories of exceptional circumstances are not closed. A restriction may therefore be justified even though the primary carer’s suitability is beyond criticism. The power under section 11(7) of the Children Act 1989 operates as a safety net where the child’s paramount welfare exceptionally requires interference with the carer’s freedom of movement.

A mother appealed against a condition attached to a residence order which prohibited her from moving her daughter from south London to Cornwall without the court’s permission. The child had Down’s Syndrome, serious and irreversible medical problems, limited understanding and a close relationship with her father and paternal grandmother.

An earlier appeal, reported as Re S (A Child) (Residence Order: Condition) [2001] 3 FCR 154, had resulted in a rehearing because the evidence had not adequately addressed the effect upon the mother and her family of preventing the move. Following further expert evidence, the county court again imposed the condition.

The central issues were whether this was a genuinely exceptional case justifying a restriction upon an otherwise suitable primary carer and whether the trial judge’s welfare assessment could properly be disturbed on appeal.

1. Appeal dismissed unanimously. Dame Elizabeth Butler-Sloss P delivered the leading judgment. Laws LJ agreed and added observations concerning exceptional circumstances. Waller LJ agreed with both judgments.

2. A suitable primary carer ordinarily has the right to choose where and with whom to live within the United Kingdom. Conditions restricting that freedom should be imposed only in genuinely exceptional circumstances. Section 11(7) of the Children Act 1989 nevertheless preserves a discretionary safety net where the child’s paramount welfare exceptionally requires such a restriction.

3. The exceptional power is not confined to cases in which the court doubts the primary carer’s ability to provide satisfactory care. Dame Elizabeth explained that her judgment in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 had not created a total prohibition in cases involving an entirely suitable carer. Laws LJ added that the categories of exceptional circumstances could not be closed without converting a broad statutory principle into a hard-edged judicial rule.

4. A parent proposing a move within the United Kingdom does not have to satisfy the more stringent requirements associated with an application permanently to remove a child from the jurisdiction. Nevertheless, a domestic restriction may be imposed where the absence of the condition would be incompatible with the child’s welfare.

5. The trial judge was entitled to find the case truly exceptional. The child’s disabilities, limited understanding, grave medical condition, shortened life expectancy and need for frequent physical contact with her father and paternal grandmother created a very real risk of serious emotional harm. The practicalities of the journey meant that the existing frequency of contact was unlikely to be maintained. The judge was also entitled to find that the mother’s resulting distress would not impair her capacity to meet the child’s needs to the same extent.

6. The judge had considered the competing welfare risks, the parents’ rights under article 8 of the European Convention and the governing authorities. Applying G v G (Minors: Custody Appeal) [1985] 1 WLR 647, the Court of Appeal could not substitute its own assessment unless the judge had misdirected himself or reached an obviously wrong conclusion. Neither ground was established.

1. Court of Appeal (Civil Division): Dismissed the mother’s second appeal and upheld the condition prohibiting the child’s relocation to Cornwall without permission.
2. Court of Appeal (first appeal): In Re S (A Child) (Residence Order: Condition) [2001] 3 FCR 154, remitted the case to the county court for rehearing because the evidence did not address adequately the effect upon the mother and her family of preventing the move.
3. Croydon County Court: Following the rehearing and further expert evidence, His Honour Judge Ellis again attached a condition to the mother’s residence order prohibiting the child’s relocation to Cornwall without the court’s permission.