M v H

In determining a child’s welfare where separated parents live in different countries, the court must treat welfare as paramount and assess all relevant circumstances. A parent’s religion is not, of itself, a reason to prefer one parent over the other. The relevant question is the effect of the parents’ beliefs, practices and lifestyles on the child’s welfare. In a difficult residence decision, the court should identify the factor most likely to promote the child’s short-, medium- and long-term welfare, assess whether that outcome is realistic, and select the least bad solution where no wholly satisfactory outcome is available. The likely promotion of the child’s relationship and contact with the other parent may be the most significant factor.

The proceedings concerned the future arrangements for a five-and-a-half-year-old child whose parents lived respectively in England and Germany. Existing shared residence arrangements had to change when the child began full-time school. The central issue was whether she should attend school in England or Germany, with consequential arrangements for residence and contact.

The court also considered the effect of the parents’ religious differences, the risk of significant emotional harm arising from their continuing conflict, and whether public-law intervention should be initiated under Children Act 1989. The issue was which arrangement would best promote the child’s welfare and her continuing relationship with both parents.

1. Welfare and religious belief. The child’s welfare was paramount under s. 1 of the Children Act 1989. The fact that one parent was Catholic and the other a Jehovah’s Witness was not, of itself, relevant. The court had to assess the practical impact of the parents’ respective beliefs, practices and lifestyles on the child in all the circumstances. The relevant social effects of the mother’s religious practices were a factor, but not the principal factor.
2. Promotion of relationships. The most significant or magnetic factor was which parent was more likely to promote the child’s continuing relationship and contact with the parent living in the other country. The assessment required a realistic prediction based on the parents’ conduct, including compliance with orders, willingness to facilitate contact, openness in providing information and capacity to reduce parental conflict.
3. Choice between imperfect outcomes. In a case involving serious parental conflict, the court should identify the outcome most likely to promote the child’s short-, medium- and long-term welfare, consider whether it was realistically achievable, and select the least bad solution if the desired outcome might not be achieved. The court concluded that the risk of the mother obstructing the child’s relationship with the father in Germany was materially greater than the corresponding risk if the child attended school in England.
4. Child’s views and harm. The child’s expressed preference for England was given no weight because she was too young to assess the relevant factors. The continuing conflict and the parents’ involvement of the child in their dispute created a significant risk of emotional harm. Stability, security and opportunities to form relationships outside the parental conflict were therefore important considerations.
5. Public-law intervention. The jurisdictional trigger for a report under s. 37 of the Children Act 1989 was established, and the court considered that the threshold in s. 31 was met on the basis of likely significant emotional harm. Nevertheless, relying substantially on the Guardian’s assessment, the court considered it premature to order a s. 37 report or interim supervision order because there remained a realistic, although poor, prospect of improvement through parental work and review.
6. Order. The child was ordered to attend full-time school in England. The shared residence order was continued as recognition of her two homes and as the best available basis for maintaining the mother’s participation in her life. Arrangements for time with each parent were to be addressed after the judgment in light of the parties’ proposals.

First-instance judgment of the High Court (Family Division). The judgment refers to earlier welfare and jurisdiction decisions in the same proceedings but does not provide their citations.