ETS v BT (A Child)

A shared residence order does not create a different legal test for a proposed relocation within England and Wales. Its existence is an important part of the welfare assessment, but it is neither an automatic bar nor a trump card against relocation.

The court must examine the underlying facts and decide whether relocation is in the child’s best interests. This requires balancing the parent’s ordinary freedom to choose where to live against any adverse effect upon the child’s welfare. A parent’s purpose of undermining the child’s relationship with the other parent may weigh strongly against relocation.

An appellate court should not overturn the resulting discretionary welfare decision unless the judge misdirected himself, reached a plainly wrong conclusion or acted outside the ambit of reasonable disagreement.

The mother sought permission to appeal, with the appeal to follow, from an order of HHJ Welchman in Lambeth County Court dated 17 November 2008. The judge had refused to permit her to relocate with the parties’ daughter from North London to Chew Magna in Somerset. He implemented that decision by varying an existing shared residence order.

The mother wished to move because she had obtained employment in Somerset. The father contended that relocation would seriously disrupt his relationship with the child and formed part of a pattern intended to diminish his parental role. The judge found that the mother was driven by an objective of undermining the shared residence arrangement and that relocation would threaten the child’s close relationship with her father.

The central issues were whether a different approach to internal relocation applies where a shared residence order exists, and whether the judge’s errors of approach required appellate intervention.

1. Permission to appeal was granted, but the appeal was dismissed unanimously. Wall LJ delivered the leading judgment. Aikens LJ and Bennett J agreed.

2. A shared residence order is a species of residence order under section 8 of the Children Act 1989. Different criteria do not apply to internal relocation merely because such an order exists. The order is an important factor in the welfare assessment, but it is not an automatic bar or trump card against relocation. The court must examine the factual matrix and determine whether relocation is in the child’s interests: [2009] EWCA Civ 20, paras 34–36 and 51–52.

3. The governing balance is between the freedom which a parent ordinarily enjoys to choose where to live and the child’s welfare, which may militate against relocation. The authorities establish that restrictions upon a suitable primary carer’s choice of residence are exceptional. The issue of location must be considered within the overall welfare and residence assessment, rather than as an independent issue.

4. The county court judge erred by distinguishing the internal-relocation authorities as involving sole residence orders. He also failed adequately to investigate alternative contact arrangements and the effect upon the mother of refusing relocation. Those errors risked distorting the welfare balance. The court nevertheless declined to interfere because they were not decisive.

5. The judge was entitled to find that the mother’s purpose was to undermine the shared residence arrangement. In the light of the history and evidence, that finding was open to him and weighed strongly against the child’s best interests. He was therefore entitled to conclude that relocation would threaten the child’s close relationship with her father and harm her emotional welfare.

6. The decision was a discretionary welfare judgment governed by the appellate restraint described in G v G, Re J and Clarke-Hunt v Newcombe. It was neither plainly wrong nor outside the ambit of reasonable disagreement. The refusal of internal relocation therefore stood.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed unanimously. The county court’s refusal of internal relocation and consequential variation of the shared residence order were left undisturbed: [2009] EWCA Civ 20.
2. Lambeth County Court: On 17 November 2008, HHJ Welchman refused to sanction the mother’s proposed relocation to Somerset. He rejected the father’s proposed equal four-day rotation but varied the existing shared residence order to extend the child’s periods with her father.
3. Earlier proceedings: HHJ Welchman had previously refused the mother’s application to relocate to Israel and made a shared residence order on 12 December 2007. Wilson LJ subsequently refused permission to appeal on paper.