H (Children: Relocation), Re

In international relocation cases, the child’s welfare remains the paramount consideration. The court must apply the statutory welfare checklist and undertake a holistic, non-linear comparative evaluation of the competing proposals. Guidance such as Payne v Payne may assist in identifying relevant issues, but it does not impose a presumption or rigid discipline. The court must give heightened scrutiny to proposals affecting the relationship between child and parent, consider the child’s right to maintain regular direct contact with both parents, and balance the competing Article 8 rights. Relocation should be refused where the evidence does not provide cogent justification for interfering with the existing arrangements. Welfare decisions are not intended to reward or punish a parent for past conduct.

The mother and father were exceptional parents to two young children who had lived with the mother in England since their removal from the Ivory Coast. The father, now living in the Netherlands, applied for permission to relocate the children there. The mother sought orders maintaining their residence with her and extensive contact with the father.

An earlier application by the father for summary return to the Ivory Coast had been dismissed, with England and Wales retaining conduct of the matter. After considering the evidence, including a CAFCASS report and oral evidence from both parents, the central issue was which living arrangement best promoted the children’s welfare under the Children Act 1989.

1. Application dismissed. The father’s application for permission to relocate the children to the Netherlands was dismissed. The children were to remain living in England, with a joint live-with order and substantial holiday and other contact with the father.
2. Under section 1 of the Children Act 1989, the children’s welfare was paramount and the decision had to be made by reference to the welfare checklist. The framework summarised in Re C (a child), drawing on Payne v Payne, Re F (a Child) (International Relocation), K v K (Relocation: Shared care arrangements) and other relocation authorities, was adopted.
3. The court undertook a holistic and non-linear comparative evaluation of the competing plans. It considered the children’s relationships with both parents, their cultural and educational needs, the likely effects of change, the parents’ ability to promote the other parent’s relationship, employment and quality-of-life consequences, and the practical arrangements for maintaining contact.
4. The children would probably adapt to either country and both parents could meet their needs. The Netherlands offered advantages for preserving the children’s Dutch heritage, but the mother’s limited employment prospects and lack of Dutch, together with the importance of their established life in England and continued relationship with her, weighed against relocation. The evidence did not provide cogent justification for disrupting the existing arrangements.
5. The wrongful removal of the children was not a factor capable of rewarding or punishing either parent. The focus had to remain on the children’s welfare. The arrangements were therefore continued, subject to detailed holiday, term-time and communication provisions, capable of variation by parental agreement as the children’s needs developed.

The judgment describes earlier proceedings in which the father applied for the summary return of the children to the Ivory Coast. That application was dismissed, and the courts of England and Wales continued to deal with the children’s living arrangements. The present proceedings were a first-instance determination of the father’s application to relocate the children to the Netherlands.