C v D

In a relocation application involving genuinely shared care, the child’s welfare remains paramount. The court must assess the practical effect of the proposed move on the quantity and quality of the child’s relationship with each parent. The usual emphasis in primary-carer cases may carry less weight where the child has two homes and two primary carers. A proposal should be refused where the existing shared-care arrangements cannot realistically be replicated and the resulting reduction in a parent’s day-to-day involvement would not meet the child’s welfare needs. Parental distress and the benefits of a new relationship remain relevant, but they are subordinate to the children’s overall welfare.

The mother applied for permission to remove two boys from England to live with her and her partner in the southern United States. The father opposed the application. Since the parties’ separation, the boys had lived under a long-standing shared-care arrangement, spending substantial term-time and holiday periods with each parent.

The central issues were whether relocation would better meet the boys’ welfare needs than remaining in England, whether the existing term-time arrangements could be replicated in the United States, and whether the term-time division should be altered if relocation was refused.

1. Relocation application refused. The court applied the welfare principle in Children Act 1989, s 1(5). The mother bore the burden of establishing that removal would better serve the children than making no order.
2. These were not ordinary primary-carer relocation cases. The boys had two homes and two primary carers under a shared-care arrangement that had operated for nearly six years. In such circumstances, the factors identified in Payne v Payne [2001] 1 FLR 1052 remained relevant, but could carry less weight.
3. The existing arrangements could not realistically be reproduced in the southern United States. The father’s business required substantial face-to-face work in London, Europe, North America and Asia. He could not spend the proposed ten-day periods in the United States during term time. Any contact would also take place outside his established home, work and support structures.
4. The resulting reduction in the quantity and quality of the father’s involvement, particularly in the boys’ day-to-day and school lives, would risk weakening their relationship with him and causing distress. The benefits of the mother’s relationship, business opportunities and proposed lifestyle did not outweigh that adverse impact.
5. The boys’ wishes and feelings were considered in light of their age and understanding. Their views had been affected by their awareness of the parents’ dispute, and neither had a realistic understanding of the reduction in time with the father that relocation would entail.
6. The father’s alternative application for an equal term-time division was also refused. The existing 20/10 arrangement was working, the boys were thriving, and further investigation of their wishes risked involving them more deeply in the parental dispute without sufficient benefit.

Not an appeal. The judgment records earlier directions and an interlocutory determination by Mr Justice Mostyn, but no appellate decision.