Z (A Child), Re

In an application to relocate a child internationally, the child’s welfare is the paramount consideration. The guidance in Payne v Payne and K v K provides relevant considerations, but no factor automatically takes priority. The court must assess the individual circumstances, including the relocating parent’s motivation and proposals, the impact of refusal, the child’s wishes and feelings, each parent’s ability to meet the child’s needs, and the likely effect of relocation. A shared residence order is inappropriate where the parents are deeply polarised and unable to trust one another, unless welfare considerations nevertheless make it appropriate.

The mother sought residence of the parties’ six-year-old child and permission to relocate with her permanently from England to Australia. The father opposed both applications and sought shared residence. The proceedings followed earlier jurisdictional and child-abduction litigation after the father wrongfully retained the child in Belgium. He did not attend the final hearing or participate by legal representative, maintaining that the English courts lacked jurisdiction.

The court determined the father’s applications for recusal and adjournment, then addressed residence, shared residence and relocation. The central issue was whether the child’s welfare justified residence with the mother and her relocation to Australia.

1. The application for recusal was refused. The test for apparent bias was objective: whether a fair-minded and informed observer, adopting a balanced approach, would conclude that there was a real possibility of bias. That test was not satisfied.

2. The application for an adjournment to enable the father to participate by video link was refused. Delay was prejudicial to the child’s welfare, the hearing had already been repeatedly delayed, and the father had been given sufficient opportunities to participate. His absence resulted from his refusal to accept the jurisdiction of the English court, rather than an impediment to attendance. His detailed written communications adequately set out his substantive position. The court considered that his Article 6 rights had been respected.

3. A shared residence order was refused. The parents were entirely polarised, neither trusted the other, and the circumstances did not suggest that sharing residence would improve their relationship or serve the child’s welfare.

4. Applying the welfare principle and the guidance in Payne v Payne [2001] EWCA Civ 166, as further considered in K v K [2011] EWCA Civ 793, the court treated the relevant considerations as cumulative and non-hierarchical. The mother’s motivation was genuine, her proposals were realistic, and relocation would provide substantial family and emotional support. Refusal would materially harm her psychological well-being. The child’s wishes and feelings were age-appropriate and balanced; the mother could meet her needs; and the child was likely to adjust to Australia and benefit from the security provided by the maternal family.

5. The father’s relationship with the child could continue through Skype and appropriately arranged direct contact. Relocation was therefore not incompatible with maintaining that relationship. The residence and relocation applications succeeded. The court declared that the child would become habitually resident in Australia six weeks after arrival, with the English court retaining authority until the Australian court became the sole jurisdiction for welfare decisions.

• Court of Appeal: dismissed the father’s appeal against the earlier judgment concerning the child’s habitual residence on 30 July 2009.
• House of Lords: rejected the father’s petition on 18 December 2009.
• Antwerp Appeal Court: recognised and enforced the English return order on 22 June 2011 and later dismissed the father’s appeal concerning the Belgian residence order on 15 November 2011.
• High Court (Family Division): determined the residence, shared residence and relocation applications in the present judgment.