B (Children), Re

In a permanent child-relocation case, welfare remains paramount and requires a rigorous evaluation of all relevant circumstances. A child’s mature and consistently expressed wishes may carry substantial weight, but cannot displace the court’s overall welfare assessment.

The destination state’s refusal to recognise the left-behind parent’s rights is relevant to proportionality under article 8, but is not decisive. A financial charge securing compliance with an English order is not governed by the contractual penalty doctrine when payment is triggered by breach of a court order. Wardship should be used with extreme circumspection where a child will become habitually resident abroad. It adds no enforcement power beyond an order under Children Act 1989, section 8, and should not create uncertainty about future jurisdiction.

The mother sought permission to relocate the parties’ two daughters permanently from England and Wales to Abu Dhabi, where her new husband worked. The father opposed the move. The children had spent substantial time in his care and had a strong relationship with him, but consistently wished to live with their mother and stepfather in Abu Dhabi.

HHJ Glenn Brasse initially permitted relocation on the understanding that contact arrangements could be made enforceable in Abu Dhabi. That premise proved wrong because UAE law would not recognise the unmarried father’s parental rights. After a further hearing, the judge again granted permission, supported by detailed undertakings, wardship and a £250,000 charge over the stepfather’s London property to secure compliance.

The father appealed, challenging the welfare assessment, the legal effect of UAE law, the charge and the use of wardship.

1. Appeal dismissed, subject to variations to the order. The judge’s conclusion that relocation was in the children’s best interests was not wrong. He had carried out a detailed welfare evaluation, understood the mother’s past conduct and the risk of future non-compliance, and was entitled to assess the children’s wishes, their attachment to their father, and the available safeguards as he did.
2. The children’s wishes and feelings were given substantial, but permissible, weight. Weight is a matter for judicial discretion. An appellate court may interfere only where the judge has gone beyond the evidence or has given one factor unjustified weight at the expense of others.
3. The father’s lack of recognised parental rights in the UAE was a material welfare and proportionality consideration. The relocation interfered with his article 8 family-life rights, but the rights of all family members required balancing. The foreign legal position was one relevant factor, not an article 8 trump card.
4. The £250,000 charge was valid security for compliance. Applying Export Credits Guarantee Department v Universal Oil Products Co, [1983] 1 WLR 399, the contractual penalty doctrine did not apply because the payment was triggered by breach of a court order, rather than breach of a contractual duty owed by the stepfather to the father. The court varied the order so that the father must apply on notice to the court for permission to realise the charge; it could not be realised on his unilateral decision.
5. Wardship added no enforcement powers beyond a child arrangements order under Children Act 1989, section 8. Following the cautious approach in Re A (Children), [2013] UKSC 60, its continuing status risked creating jurisdictional ambiguity after the children became habitually resident abroad. The circumstances did not justify wardship. It was replaced with a section 8 child arrangements order in like terms.
6. The removal of wardship did not undermine the relocation order. The enforceable English order, potential contempt proceedings, and the charge were substantial incentives for compliance, alongside the children’s strong commitment to maintaining their relationship with their father.

• Court of Appeal (Civil Division): The father’s appeal was dismissed by a unanimous court, subject to replacement of wardship with a child arrangements order under Children Act 1989, section 8, and amendment of the procedure for realising the charge: [2015] EWCA Civ 1302.
• High Court of Justice, Family Division: HHJ Glenn Brasse, sitting as a Deputy High Court Judge, granted the mother permission on 4 June 2015 to relocate the children to Abu Dhabi. The order included undertakings, wardship and a £250,000 charge to secure compliance.