DH v CL & Ors

International relocation is determined by the child’s welfare, without a presumption in favour of either relocation or the parent with whom the child lives. The court must evaluate all realistic options globally and holistically, using the welfare checklist and the evidence. Parenthood is an important factor only insofar as it contributes to the child’s welfare; it creates no preferential starting point. The court must also give close attention to the child’s rights to family life under Article 8 of the ECHR. Where enforcement abroad is uncertain, the court should build into its order all practical safeguards reasonably available, while assessing both the risk and potential consequences of breach.

The father applied under the Children Act 1989 for permission permanently to relocate his seven-and-a-half-year-old son from England to the Kurdistan Region of Iraq. The child had lived primarily with the father for more than four years. The mother did not seek to care for him, while the maternal grandparents proposed caring for him in England if relocation were refused. The local authority and Children’s Guardian supported relocation. The court considered the competing placement options, the child’s relationships with both sides of his family, his educational and cultural needs, the proposed arrangements in Kurdistan, and the practical difficulty of enforcing contact arrangements in Iraq.

1. Application granted. The court made a section 8 child arrangements order confirming that the child lived with his father and permitted permanent removal to Kurdistan at the end of the school summer term. It also made orders for contact with the mother and maternal grandparents before and after relocation.
2. The controlling consideration was the child’s welfare under Children Act 1989, section 1(1), with specific regard to the section 1(3) welfare checklist. International relocation was not subject to a determinative presumption in favour of the applicant. Following K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793, the court considered all facts and placed every relevant consideration in the balance.
3. The court evaluated the realistic options globally and holistically, following and adapting Re W [2013] EWCA Civ 1227 and avoiding a linear comparison of isolated advantages and disadvantages. Parenthood was treated as significant only because of its potential contribution to welfare, in accordance with Re G [2006] UKHL 43 and Re B [2009] UKSC 5.
4. The child’s Article 8 rights included family life with his father, mother, maternal grandparents and half-siblings. The court balanced the likely loss of regular maternal-family contact against the greater stability, consistent care, family support, education and cultural benefits available in Kurdistan. The father’s proposal was realistic and sufficiently detailed. The alternative of remaining in England risked the child losing his father’s day-to-day care and facing an unsuitable long-term placement.
5. Iraq was not a signatory to the Hague Convention and foreign orders had no assured enforcement there. Applying Re K (Removal from the Jurisdiction Practice) [1999] 2 FLR 1084, following Re T (Staying Contact in Non-Convention Country) [1999] 1 FLR 262 and Re A (Security for Return to the Jurisdiction: Note) [1999] 2 FLR 1, the court assessed both the risk and magnitude of breach and adopted practical safeguards. A monetary bond was unrealistic, so the father gave an oath-based undertaking to return the child annually for contact.