F v M & Anor

In an application to relocate a child abroad, the child’s welfare remains paramount. There is no presumption in favour of the parent seeking permission, although a genuine and practical proposal by the primary carer may carry substantial weight. The court must examine the proposal, the opposition to it, the effect of refusal on the applicant and child, the likely effect on the child’s relationship with the other parent, and all relevant short-, medium- and long-term consequences.

Where continuing parental conflict is seriously damaging the child and there is little prospect of improvement, relocation may better promote welfare despite reduced direct contact with the left-behind parent. The decision must be fact-specific. The guidance in Payne v Payne is a framework for assessment, not a presumption or a substitute for the welfare evaluation.

The father applied for a sole or joint residence order in respect of C, aged four. The mother applied for permission to take C permanently to New Mexico, where she had employment prospects, support from friends and access to her ill and elderly mother.

The case arose from a prolonged and exceptionally acrimonious dispute. The father had established a strong relationship with C, but the parents’ continuing hostility, mutual suspicion and inability to communicate had exposed C to serious emotional risks. Expert and guardian evidence addressed the sustainability of the existing arrangements, the effect of continued conflict and the proposed contact arrangements in the United States.

The central issues were whether residence should be transferred to the father, whether shared residence was workable, and whether relocation would best promote C’s welfare.

1. Residence. A sole residence order in favour of the father was rejected. The mother was C’s primary carer, there were no material concerns about her day-to-day care, and the evidence did not justify removing C from her care. A shared residence order was also inappropriate. The parents could not communicate, and the experts were unanimous that continuing conflict and compartmentalisation would be seriously harmful to C. The court could not resolve that problem by deciding which parent was principally to blame. [2006] EWHC 1783 (Fam) [161]-[173].
2. Relocation framework. The court applied the guidance in Payne v Payne and the summary in Re C (Permission to remove from the jurisdiction). The mother’s application had to be genuine and practical, but those matters did not create a presumption that permission should follow. The court had to assess all relevant welfare factors and their likely short-, medium- and long-term effects. [2006] EWHC 1783 (Fam) [140]-[142], [174].
3. The mother’s application was genuine. Its principal drivers were suitable employment in her chosen profession and the serious deterioration in her mother’s health. It was practical because employment, housing, schooling, health insurance and a support network had been investigated. The court accepted that exclusion of the father was not the dominant motivation, despite the mother’s understandable wish to escape the existing strain. [2006] EWHC 1783 (Fam) [175]-[179].
4. The father’s opposition was genuine and his relationship with C was valuable. Nevertheless, refusal would have had a profound and lasting effect on the mother, with likely consequences for her care of C, while continued conflict in the United Kingdom was likely to cause increasing emotional and psychological harm. Those factors outweighed the reduction in the quality and amount of direct contact with the father. [2006] EWHC 1783 (Fam) [180]-[197].
5. Permission was therefore granted for the mother to relocate with C to New Mexico, subject to conditions. The court required consideration of mirror orders and undertakings, assistance with parental communication, and financial safeguards intended to reassure the father that contact could take place in the United States without further allegations or the need for an accompanying person. The matter was restored for further hearing to settle the conditions and draft orders. [2006] EWHC 1783 (Fam) [198]-[202].