G v S

Heads of agreement reached in Schedule 1 proceedings will ordinarily establish the parties’ consensus, but the court retains responsibility for ensuring that the resulting order serves the child’s welfare and is legally appropriate. At the stage of converting agreement into an order, the court may refuse or modify a term that is inconsistent with the child’s best interests. Stability is not synonymous with maintaining a settled address in one country. Restrictions on relocation must remain sufficiently flexible to respond to the child’s welfare. Confidentiality provisions should be confined to established guidance unless supported by cogent evidence and a proper balance between the parties’ Article 8 and Article 10 rights. Undertakings have the same potential consequences as court orders.

The parties were parents of a young child and were engaged in Schedule 1 financial proceedings. They had signed heads of agreement after negotiations conducted by experienced legal representatives. The agreement provided for housing, maintenance, associated expenses and confidentiality provisions.

The remaining disputes concerned whether the final order should restrict the mother from obtaining a replacement property outside England and Wales during the child’s primary education, whether the proposed confidentiality provisions were permissible, and several matters concerning implementation of the financial arrangements. The central issues were the extent to which the court should give effect to the heads of agreement and whether the proposed terms were compatible with the child’s welfare and the parties’ rights.

1. Heads of agreement and welfare. The court should ordinarily respect heads of agreement signed by the parties and their experienced representatives. The court’s role at the later stage of expressing the agreement in an order is not that of a rubber stamp. The court must consider the agreement as a whole and give effect to its objectives, while retaining responsibility for the child’s welfare.
2. Relocation and flexibility. The agreement’s objective was to provide the child with material and emotional security, including a secure home. It did not require the child to remain in a country with which she had no family connection. Stability and security were not equivalent to maintaining a settled address in one country. A restriction preventing the mother from obtaining a replacement property outside England and Wales was therefore inappropriate. The order should instead provide that the mother could not move with the child without the father’s agreement or the court’s permission, with jurisdiction retained to review housing and maintenance provisions if relocation occurred. The order should be capable of accommodating more than one move if required by the child’s needs.
3. Confidentiality. The proposed restrictions exceeded the applicable guidance. The court could make restrictive orders only if supported by cogent evidence and if the competing Article 8 and Article 10 rights had been properly balanced. The provisions were too ambitious, including obligations concerning third-party information, deletion of emails and prevention of publication. They were confined to the terms set out in the relevant guidelines. An undertaking, if freely given, carries the same potential consequence as breach of an order, including imprisonment.
4. Implementation. The order was drafted flexibly to reflect the mother’s responsibilities as primary carer, the father’s substantial resources and the child’s comfort, security and well-being. The question of any extension or variation of the existing Legal Services Order was left to District Judge Gibbons.

First-instance decision. The judgment does not state any prior appellate decision.