S (A Child), Re

In an internal relocation dispute, the child’s welfare remains paramount. A Shared Residence Order, or an effectively shared-care arrangement without an order, is not an automatic bar or trump card against relocation. The court must examine the underlying factual matrix and balance the parent’s freedom to locate against the child’s welfare, including the effect on contact and the risk of emotional harm from continuing parental conflict. A finding that one parent is the primary carer may be relevant, but it is not decisive. Appellate intervention is justified only for a plainly wrong decision or a material failure to consider or properly weigh relevant factors.

The father appealed against orders made by Wandsworth County Court on 16 March 2012 concerning the parties’ two-year-old daughter. The judge granted residence to the mother, provided the father with alternate-weekend and holiday contact, and discharged a Prohibited Steps Order so that the mother could move from London to Norwich.

The father argued that the judge had wrongly treated the mother as the primary carer, failed to recognise an established shared-care arrangement, and failed adequately to assess the effect of relocation on his relationship with the child. He also challenged the treatment of the welfare report and alleged bias. The central issue was whether the judge had applied the correct welfare-based approach to residence, contact and internal relocation.

The appeal was dismissed unanimously. Sir Mark Potter gave the leading judgment. Lady Justice Black and Mr Justice Norris agreed.

1. Applicable approach. The court applied Re L (Shared Residence Order) [2009] EWCA Civ 20, reported at [2009] 1 FLR 1157. A Shared Residence Order is an important welfare factor, but it is not an automatic bar or trump card against relocation. The same approach applies where the parties have operated effective shared care without a previous order. The court must examine the underlying factual matrix and balance the parent’s freedom to locate against the child’s welfare.
2. Primary carer. The judge was entitled to find that the mother was the primary carer. She expressly treated that finding as necessary only if required and did not regard it as determinative. The ultimate question remained the child’s welfare. A v A [2004] EWHC 142 was distinguishable because it concerned a 50:50 arrangement in which both parents sought to dominate, whereas the judge found that the father alone sought to control the mother and might use a Shared Residence Order as a weapon.
3. Welfare assessment. The judge considered the Welfare Checklist. She found no current physical risk in the mother’s care and accepted that both parents could meet the child’s physical needs. However, the father’s continuing anger, controlling conduct and parental competition created a risk of future emotional harm. The child could adapt to the longer journey involved in alternate-weekend contact, particularly because the mother agreed to share the travelling burden. A settled, more distant regime was preferable to close shared care likely to intensify conflict. Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 reinforced the discharge of the restriction on the mother’s residence.
4. Appellate review and evidence. Although the judge did not expressly set out the loss of weekly contact as a separate factor, the judgment as a whole showed that regular contact, reduced frequency, travel and longer-term welfare consequences had been considered. The omission did not invalidate the decision. The s.7 report was of limited value because it pre-dated the hearing, addressed relocation only incompletely and was superseded by later evidence and findings. The appellate court found no plainly wrong conclusion, material omission or bias.
5. Additional observations. Lady Justice Black noted the debate concerning an exceptionality test in internal relocation cases, but considered it unnecessary to resolve that issue because the judge had applied a straightforward welfare analysis without such a presumption.

• Court of Appeal (Civil Division): On 24 July 2012, the appeal was dismissed.
• Wandsworth County Court: On 16 March 2012, Her Honour Judge Knowles granted residence to the mother, made contact arrangements for the father, and discharged the Prohibited Steps Order.