S (Children) , RE

In relocation cases concerning siblings, each child’s welfare must be considered separately under the Children Act 1989, even where the parties agree that the children should remain together. Where their interests conflict, the court must balance one child’s welfare against the other’s. A mature adolescent’s wishes may carry great or decisive weight in relation to his own welfare, but a younger child dependent on a primary carer requires a different assessment. In a lifestyle-choice case where existing arrangements are satisfactory and no compelling objective reason for relocation exists, the parent seeking removal bears a heavy evidential burden. An appellate court may intervene where the decision is plainly wrong or results from a material error in the balancing exercise.

The father applied to remove his two sons, aged 16½ and 12, from England to Canada. The mother was their primary carer. On 4 November 2010, HHJ Walford at Middlesbrough County Court treated the boys as a unit and granted permission for their removal. The elder child left for Canada before the appeal, which was pursued only in respect of the younger child. The Court of Appeal obtained a further CAFCASS report addressing the changed circumstances. The central issues were whether the judge had erred by failing to consider the children separately and whether removal of the younger child remained consistent with his welfare.

The Court of Appeal unanimously allowed the appeal.

1. Appellate review. Sir Mark Potter applied the approach recently reviewed in Re W (Children) [2011] EWCA Civ 345, drawing on Lord Fraser’s statement in G v G [1985] 1 WLR 647. An appellate court is not confined to judicial-review grounds. It may intervene where a conclusion is plainly wrong or where the judge has made a material error in balancing the relevant factors. It must not intervene merely because it would have reached a different conclusion.
2. Separate assessment of siblings. Section 1 of the Children Act 1989 requires the welfare of each child to be considered individually. Where siblings’ interests conflict, the court must balance the welfare of one against that of the other. Re T and E (Proceedings: Conflicting interests) [1995] 1 FLR 581 supported that approach. A common position that siblings should remain together cannot replace the required individual analysis.
3. Error in the first-instance approach. The judge’s unitary approach subordinated the younger child’s welfare to the wishes and perceived interests of his older brother. The older child was mature and articulate, whereas the younger child was still dependent on the day-to-day care and influence of his mother. Their different ages, development and needs required different weight to be given to their wishes and feelings.
4. Relocation merits. This was a lifestyle-choice case, unlike Payne v Payne [2001] EWCA Civ 166; [2001] Fam 473, where compelling objective reasons for relocation existed. The existing arrangements were satisfactory, and there was no compelling need to move. The father therefore bore a heavy onus to establish that removal was in the long-term interests of both children. The judge’s fears that refusal would demoralise the younger child or permanently damage his relationship with his mother were speculative and insufficiently supported by evidence.
5. Outcome. The later evidence showed that the younger child remained settled, cheerful and successful at school, and did not substantially miss his brother. His ambivalence showed that he wished the court to make the decision. The permission to remove him was set aside, the interim residence order in the mother’s favour was restored in relation to him, and the existing contact arrangements relating to the elder child remained in force.

• Court of Appeal (Civil Division): On 18 April 2011, unanimously allowed the mother’s appeal. The court set aside permission to remove C from the jurisdiction and restored the interim residence order in relation to him.
• Middlesbrough County Court: On 4 November 2010, HHJ Walford granted the father permission to remove both children to Canada. Leave to appeal was granted on 23 November 2010. A stay was later obtained in the Court of Appeal in respect of C.