S v S (Relocation)

In determining an application to relocate children, the court must assess welfare by balancing all relevant factors and selecting the best available option. The wishes and feelings of older children are an important element of welfare, even where those wishes are unwise or immature. The court should respect those views unless the consequences of the choice would be profoundly harmful. In an exceptional children case, a costs order may be justified by reprehensible or unreasonable conduct, but the conduct must be clearly linked to the way the proceedings arose, were pursued, or had to be resolved.

The father applied for permission to remove his two teenage sons from England to Switzerland, where he had established a home. The mother opposed the application. The children were separately represented and supported the proposed move. The central issues were the boys’ welfare, the significance of their strongly expressed wishes and feelings, the likely effect of relocation on their relationship with their mother, and the appropriate allocation of legal costs.

The application was heard at first instance in the Family Division.

1. Relocation. The application was granted. The court’s task was to determine welfare by balancing all relevant factors and choosing the best available option. A move to Switzerland would alter the children’s primary care arrangements, education and relationship with their mother, but the court found that the boys had little attachment to England, that the educational consequences were not materially adverse, and that the father could meet their day-to-day needs.
2. The boys’ emotional need for a more normal atmosphere was more important than their physical or educational needs. Although the relationship with the mother was at risk, refusal of the application was also likely to leave the boys and their mother in a desperate position. The court considered that orders and the father’s stated position could preserve the mother’s role.
3. The boys’ age and understanding gave substantial weight to their wishes and feelings. Older children are not required to express wise or reasonable views. Respecting their views necessarily includes accepting some risk that they may make mistakes. Unless the consequences of the choice would be profoundly harmful, the court cannot protect older children from every mistake. On the evidence, the boys’ wishes made relocation the only viable choice.
4. The order was to provide for the children to live with both parents, include financial support for the mother, be readily enforceable in Switzerland, and permit departure on 22 September 2017.
5. Children’s representation. The judge agreed with the stated duties concerning solicitors’ integrity, independence, confidentiality and the child’s participation rights, but observed obiter that there was a wider tension between children’s access to legal advice and parents’ need to know what is happening in their children’s lives. Secret meetings with children raised child-welfare concerns requiring further thought.
6. Costs. The mother was awarded £150,000. The normal approach in children cases is no order for costs, but an award may be justified where conduct is reprehensible or unreasonable and is clearly linked to the costs consequences of the proceedings. The father’s conduct met that test. Earlier interlocutory costs orders could not be varied without first being set aside.