D (A Child), Re

In an application under Children Act 1989, s 13, the court must determine relocation by a global and holistic evaluation of the competing welfare options. The child’s welfare is paramount, and the relocation decision requires a proportionality assessment. The welfare checklist in s 1(3) may assist, although it is not mandatory for a s 13 application.

Practical plans need not be finely detailed where a primary carer is returning to a familiar home environment after a relatively short absence. The court must compare realistic placement options and assess the competing risks, including the risk that either parent may fail to promote the child’s relationship with the other. Relocation was permitted where living with the primary carer in the familiar home country was more consistent with the child’s welfare than placement with the other parent.

The parents each sought a child arrangements order under Children Act 1989, s 8, concerning their three-year-old daughter. The mother also sought permission under s 13 to remove the child permanently from England and Wales to Israel.

The mother had taken the child to Israel without the father’s permission in March 2015, following which proceedings were brought in both jurisdictions. The child returned to England in May 2015. At the final hearing, the court considered the mother’s precarious immigration, housing and financial circumstances, the father’s proposals for care, the mother’s proposed arrangements in Israel, and the effect of each option on the child’s relationship with both parents.

The child arrangements applications were not finally determined because safeguarding checks had not been completed. The central issue for determination was whether permanent relocation to Israel was consistent with the child’s welfare and proportionate.

1. Application granted. Permission was given under s 13 of the Children Act 1989 for the mother to remove the child permanently from England and Wales to Israel.
2. The child’s welfare was paramount. The court had to undertake a global, holistic welfare evaluation of each proposal and a proportionality evaluation of the relocation application. For the cross-applications under s 8, the court had regard to the welfare checklist in s 1(3). Although the checklist was not mandatory for s 13, it could assist the welfare evaluation.
3. The court rejected continued residence in England with the mother and any shared-care arrangement as unrealistic or incompatible with welfare. The mother’s insecure immigration, housing and financial circumstances created a risk that her distress would impair her parenting and affect the child’s relationship with the father.
4. Placement with the father would involve major changes for a child who had always been primarily cared for by the mother. The court was concerned about the father’s rapidly changing domestic circumstances and the risk that hostility within the paternal family would marginalise the mother.
5. The mother’s plans in Israel were not finely developed, but she was returning to a familiar country where she had family, friends and possible accommodation and employment. Applying Re F and H (Children) [2007] EWCA (Civ) 692, the practicalities threshold was lower in a return-home case than where a parent proposed an unknown or untried environment.
6. The risk that the child would lose a relationship with the non-resident parent existed whichever parent cared for her. It was judged greater if the child lived with the father. The child’s security with her primary carer and protection from significant change therefore favoured relocation to Israel, which was proportionate.