R, Re (A Child : Relocation)

In relocation proceedings, the child’s welfare is paramount. The court must assess the practical effect of removal on the child’s relationship with the left-behind parent, including the loss of ordinary physical, emotional and quotidian contact. Telephone, Skype and proposed holiday contact may not adequately compensate for that loss. The court should evaluate the parents’ proposals realistically, including their credibility, ability to facilitate contact, financial circumstances and the enforceability of protective orders abroad. Shared care is not a separate legal test. The court must determine the arrangements that best serve the individual child’s welfare under section 1 of the Children Act 1989, read consistently with the parties’ Article 8 rights.

The mother applied for permission to relocate with R, aged two and a half, from England to Hong Kong, where she proposed to accept employment. She offered periodic visits to England, visits by the father to Hong Kong, and telephone and Skype contact.

The father opposed relocation. He sought continuation and extension of his established contact, including three overnight stays each week and a child arrangements order reflecting substantially shared care. The central issues were whether relocation would serve R’s welfare and what arrangements should be made if R remained in England.

1. The mother’s relocation application was dismissed. The father’s application was granted and a child arrangements order was made providing for R to spend three nights each week with him.
2. Under section 1(1) of the Children Act 1989, R’s welfare was paramount. The relevant parts of the section 1(3) welfare checklist were considered, without treating the checklist as requiring a mechanical, item-by-item analysis.
3. The proposed relocation would substantially disrupt the ordinary development of R’s relationship with his father. Regular physical interaction, affection, guidance, eye contact and the quotidian character of family life could not realistically be recreated by short visits, telephone calls or Skype. The proposed arrangements did not begin to compensate for the loss.
4. The court assessed the mother’s proposals in light of her history of restricting and frustrating contact, her failure to recognise the father’s role, and the judge’s conclusion that she was unlikely to sustain the proposed regime. Mirror orders in Hong Kong provided some theoretical enforceability but insufficient practical certainty.
5. The court also considered the father’s limited finances and business commitments, the likely emotional harm to R if his relationship with his only natural parent substantially deteriorated, and the mother’s ability to establish a satisfactory life in England. These factors favoured refusing relocation.
6. The expressions “shared care” and “primary care” were not useful legal tests. Both parents were capable of caring for R, and the increased overnight contact was justified by R’s evident ease and secure relationship with his father. The court rejected the argument that the issue had not been sufficiently investigated.
7. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was taken into account. Where the adults’ and child’s rights conflicted, R’s rights prevailed.

First-instance decision. No earlier appellate decision is stated in the judgment.