G (A Child)

A foreign child-arrangements order is not binding on an English court, although comity requires the court to respect it, examine its basis and consider whether circumstances have materially changed. The court must determine the child’s present welfare on current evidence. A residence order should ordinarily not be fettered by requiring the resident parent to live in a particular locality. Practical geography, travel, finances and the child’s response to contact may make an inherited schooling or contact arrangement contrary to welfare. Where contact terms have become unworkable and immediate enforcement may harm the child, the court may suspend them and remit the matter for further directions. Such suspension does not remove the longer-term importance of restoring the child’s relationship with the other parent.

The mother appealed in person against orders made by Deputy Judge Rowe QC in the Principal Registry of the Family Division. Those orders followed an appeal from District Judge Enyon, who had refused the father’s applications for immediate contact and enforcement of an Australian schooling order.

The Australian Family Court had ordered that the child live with the mother, attend a specified school in Bedfordshire and have regular contact with the father. After the parents returned to England, the mother moved from Buckinghamshire to Dorset and the child became increasingly unwilling to see his father. The issues were whether permission should be granted for a further appeal and whether the schooling and contact arrangements remained appropriate in the light of the changed circumstances and current welfare evidence.

1. Permission and fresh evidence. Permission for the second appeal was granted. Although there was no important point of practice or principle, the changed circumstances and fresh evidence gave a compelling reason for the Court of Appeal to address the present position. The court acted on the evidence before it because no party had objected to its admission.
2. Approach to the Australian order. Deputy Judge Rowe correctly recognised that the Australian order was not binding on the English court. Comity required respect for it, examination of the basis on which it had been made, and consideration of whether anything significant had changed so as to justify a different welfare decision. The error was in applying that approach without sufficiently examining the evidential and practical basis of the schooling order.
3. Schooling and residence. The proposed journey between the mother’s temporary home and the school involved about 40 miles each way, with substantial financial and practical difficulties. The geographical distance was sufficiently deleterious to the child’s welfare that it could not be countenanced. A residence order should ordinarily not be conditioned by requiring the resident parent to live near a particular school: Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, particularly page 642. It was wrong to require the mother to relocate near the school.
4. Contact. The contact arrangements reflecting the Australian order had become unworkable, and immediate enforcement could operate adversely to the child’s interests. The contact order was therefore suspended, with the matter returned to the High Court for proper examination and further directions. The court stressed that both parents had to make a fresh start and that the child’s relationship with his father should, consistently with welfare, be restored.
5. The appeal was allowed in part. The order requiring attendance at B Middle School was discharged. The residence order in favour of the mother remained, and she was directed to resume the child’s education as soon as possible. The contact order was suspended and contact was to proceed only as agreed pending further directions.

• Court of Appeal (Civil Division) granted permission for the second appeal and allowed it in part, discharging the schooling order and suspending the contact order.
• Principal Registry of the Family Division, Deputy Judge Rowe QC allowed the father’s appeal from District Judge Enyon and ordered that the child reside with the mother, attend B Middle School and have contact with the father in accordance with the Australian order.
• District Judge Enyon refused the father’s applications for immediate contact and enforcement of the education order.