Re Z (No 2 Welfare)

In an international relocation application, the child’s welfare is paramount. The court must undertake a global, holistic evaluation of each realistic option, recognising that relocation decisions are binary but no option is risk-free. The assessment should weigh the child’s relationships with each parent, the ability of each parent to promote the other’s relationship, the practical enforceability of orders abroad, the relocating parent’s welfare and support, and the availability of suitable treatment and accommodation. A proposed move may be refused where there is a real risk that the child’s relationship with the left-behind parent would be seriously undermined and the safeguards in the proposed destination would be ineffective. The court may retain or restore a parental-order application where circumstances, including a surrogate’s consent, may change.

The proceedings concerned the future care of Z, a one-year-old child born in Georgia through a surrogacy arrangement jointly pursued by W and X. Y, the surrogate, was a party but did not engage consistently and did not presently consent to a parental order. W and X, who had separated after Z came to England, were both treated as Z’s psychological and social parents.

The court determined X’s application for leave to remove Z to North Macedonia, opposed by W and by Z’s Children’s Guardian. It also considered whether the parental-order application should be stayed pending a possible change in Y’s position, and the arrangements for Z if X remained in England.

1. Relocation. X’s application for leave to remove Z to North Macedonia was refused. Z’s welfare was paramount. The court applied the principles summarised in Re C (A Child) [2019] EWHC 131 (Fam) and the practical guidance in Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882, undertaking a global and holistic evaluation of the competing welfare options.
2. The decisive consideration was the greater likelihood that Z’s secure relationships with both W and X would be maintained in England. If Z moved with X, there was a real risk that X would be unable to promote Z’s relationship with W, resulting in that relationship being seriously undermined or severed. That risk was supported by the earlier findings, X’s attitude towards W, his inconsistent approach to the parental-order application, his tendency to avoid difficult situations and his conduct concerning immigration applications.
3. The court accepted the expert evidence that orders made in England were unlikely to be recognised or effectively enforced in North Macedonia, including under the 1980 Hague Convention, because of the legal position concerning same-sex parental relationships. A conditional or suspended relocation order would not remove the welfare risk because it would prolong uncertainty and conflict.
4. The court carefully weighed X’s isolation, financial difficulties, accommodation problems, lack of family support and mental-health needs. W’s proposed financial support, nursery provision and the availability of specialist psychological treatment in England meant that X could obtain greater stability and treatment while preserving Z’s relationships.
5. If both parties remained in England, Z was to share his time between them on a seven-day basis, with Friday handovers. The court considered that arrangement consistent with Z’s welfare needs and reflective of the equal parental role of W and X.
6. The court indicated that there was force in staying the parental-order application, following Re AB [2016] EWHC 2643 (Fam), so that it could be restored if Y’s consent position changed. The issue was left subject to further representations.
7. The court considered it essential to resolve Z’s immigration position by withdrawing the existing application and replacing it with an application for leave to remain outside the rules.

First-instance decision in the High Court (Family Division). The judgment records a fact-finding judgment dated 13 August 2021 and subsequent directions, but no appeal from an earlier decision is stated.