CL v AL

In determining competing applications concerning children living in different countries, the court must treat welfare as paramount and give real weight to the children’s wishes and feelings, assessed in light of their age and understanding. A sibling relationship and the practical availability of direct contact are material welfare considerations. Where reunification is essential but the parents cannot live together, the court must balance the likely harm of each realistic placement. A strongly held view is important but is not determinative. The court may reject an option that is neither credible nor practically achievable, including where implementation would require a child to be forcibly removed from an established home and taken abroad.

The father sought variation of an order made by District Judge Gailey on 15 July 2016, which had permitted the children to move to Australia with their mother. The mother sought enforcement of that order. One child remained in England after refusing to travel to Australia, while the other moved there with the mother. The court first determined that both children remained habitually resident in England and Wales when the father’s variation application was issued, and that it had jurisdiction. It then decided where the siblings should live, having regard to their wishes, their close relationship, the parents’ positions, and the limited scope for direct contact if they remained separated.

1. Jurisdiction. The court held that habitual residence is a question of fact requiring assessment of the child’s degree of integration in the relevant social and family environment. It agreed with the approach in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 that it is unusual, though possible, for a child to lose one habitual residence without acquiring another. The children had not acquired habitual residence in Scotland or England by the time of the mother’s original application, but the court had jurisdiction based on their presence. By July 2016 they had acquired habitual residence in England. The younger child had not acquired habitual residence in Australia by September 2016 and had not lost his English habitual residence.
2. Welfare evaluation. Under s.1 of the Children Act 1989, welfare was paramount and the welfare checklist had to be considered. The children’s wishes and feelings required real weight, given their ages, but were not determinative. The siblings’ exceptionally close relationship made reunification particularly important. Maintaining the existing separation, with one child in England and the other in Australia, was contrary to both children’s welfare because direct contact would be limited largely to school holidays.
3. Choice between realistic placements. The ideal arrangement was for both children and both parents to live in England with shared care, but the court could not order that outcome because it depended on parental agreement. The remaining realistic choices were for both children to live with the father in England or both to live with the mother in Australia. The proposal that the older child should move to Australia was not credible or practically achievable, and there was no evidential basis for expecting persuasion or therapeutic intervention to change his strongly held position.
4. Balance of harm and orders. The court balanced the harm to the older child of moving to Australia against the temporary upset to the younger child of moving to England. The balance favoured making child arrangements orders for both children to live with the father in England, with arrangements for time with the mother to be agreed or later enforced. The court indicated that the younger child should move in time to start the new academic year in England.