S (A Child), Re (Rev 1)

In determining an application to relocate a child internationally, the child’s welfare is paramount. The court must consider all relevant welfare factors, including the effect of relocation on relationships with both parents, without applying presumptions in favour of or against relocation. A proposed shared-care arrangement must be assessed by reference to the child’s welfare and the practical consequences of conflict between the parents. A parent’s ability to meet the child’s emotional needs, the stability and support available in each country, the child’s familiarity with the proposed destination, and the realistic prospects of continuing contact are relevant considerations.

The mother applied for permission to relocate with S, aged nearly six, from England to Colombia. S had lived with her since the parents separated. The respondent father, who was S’s psychological rather than biological father, opposed relocation and sought residence or shared residence. The Children’s Guardian supported the mother’s application.

The court also considered the father’s parental responsibility, his relationship with S, the proposed arrangements for contact, and whether relocation would better serve S’s welfare. The central issue was whether S’s best interests required him to remain in England or move with his mother to Colombia.

1. Welfare and relocation. S’s welfare was the paramount consideration. The court had regard to the welfare checklist and Article 8 ECHR, applying no presumption in favour of either outcome. The authorities in Payne v Payne [2001] EWCA Civ 166 and K v K [2011] EWCA Civ 793 assisted, but the decision depended on an overall welfare assessment.
2. Residence. S should live with his mother. She had provided almost all of his care during the previous year and was better able to meet his essential emotional needs. Equal shared residence would create conflict and inconsistency and was rejected as contrary to S’s welfare.
3. Relocation. The mother was unlikely to meet S’s needs if required to remain in England, where she was under significant stress and lacked effective support. Her ability to care for him would be markedly greater in Colombia, surrounded by family and friends. Colombia was familiar to S, having been his home during the first years of his life. The concerns about local conditions did not establish that the proposed destination was unsafe or unsuitable.
4. Contact. The possibility that contact might fail was relevant but not decisive. The court considered that contact could continue if both parents adopted a cooperative approach. The mother was ordered to facilitate specified contact in England and Colombia, including visits, holiday contact and weekly Skype communication.
5. Parental responsibility. The father did not acquire parental responsibility under English law merely because he appeared on S’s Colombian birth certificate. The earlier order was set aside. An order was made under section 4A of the Children Act 1989, reflecting the father’s commitment to S and his status in Colombia. The flexible nature of that power was supported by Re R (Parental Responsibility) [2011] EWHC 1535 (Fam), [2011] 2 FLR 1132.
6. Residence was ordered in favour of the mother, with permission to remove S to Colombia on 17 August 2013, subject to the agreed contact and notarised-agreement arrangements.