C (Older Children: Relocation), Re (Rev 1)

When relocation concerns a mature child aged 16 or 17, the court must first ask whether making an order is better for the child than making none under Children Act 1989, s.1(5). In an appropriate case, no order may be positively better because the court cannot effectively direct the child. For younger children, the court must conduct a global, holistic evaluation of welfare, including wishes and feelings, settled relationships, practical arrangements and the consequences of each option. Critical scrutiny of a relocating parent’s plans is proper where the proposal would fundamentally change family life.

H, the mother, sought permission to move with E and J from London to New York. The Central Family Court, Recorder Tidbury, refused permission on 23 July 2015, finding the proposal insufficiently realistic and contrary to the children’s welfare despite their expressed wish to be with their mother. E, then aged 16, joined the proceedings and appealed with his mother. The mother also appealed in relation to J. The central issues were whether the court could make or maintain orders affecting an older child and whether the recorder’s welfare assessment was legally flawed.

The Court of Appeal allowed E’s appeal and the mother’s appeal in relation to E, but dismissed the mother’s appeal concerning J. Lord Justice Lindblom and Lord Justice Tomlinson agreed with the reasons of Mr Justice Peter Jackson.

1. Under the no-order principle in Children Act 1989, s.1(5), an order must not be made or continued unless it is better for the child than making no order. Although a child remains a person under 18, a mature and intelligent child aged 16 or 17 may be too old to be directed effectively in a relocation dispute. In E’s case, making no order was positively better. The existing child arrangements order was therefore discharged insofar as it affected him, and the restriction under s.13 fell away.
2. The statutory scheme distinguishes section 8 orders from the separate restriction on removal from the United Kingdom under s.13. The court observed that relocation applications are not readily classified and that the exceptional-circumstances provisions in s.9 should protect children requiring additional protection, rather than override the views of a mature 16- or 17-year-old. The present decision, however, was determined under s.1(5), not s.9.
3. The recorder’s welfare assessment was not impermissibly linear. A global, holistic evaluation is shorthand for an overall and comprehensive analysis of the child’s welfare, with regard to the welfare checklist. The approach described in Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882 was satisfied. The recorder considered the boys’ wishes, their settled life and relationships, the competing consequences, and the practical weaknesses in the mother’s plans.
4. Where a parent proposes a fundamental change in family arrangements, the court is entitled to scrutinise practical details and require unresolved matters to be addressed satisfactorily. The mother’s plans were therefore properly examined. In J’s case, the refusal of relocation was upheld. The existing order was varied so that it would end when J reached 16, unless the parents agreed other arrangements.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 1298, E’s appeal and the mother’s appeal concerning E were allowed. The mother’s appeal concerning J was dismissed.
2. Central Family Court: On 23 July 2015, Recorder Tidbury refused the mother permission to remove E and J from London to live in New York.