ZR v TP

In a child-relocation appeal, the court must assess the child’s welfare in the circumstances existing when the appeal is determined. Material changes after the first-instance decision may justify setting that decision aside and determining the issue afresh.

The assessment must address the practical consequences of relocation, including accommodation, financial security, family support and the child’s relationship with the other parent. A contact order made in England is not inherently unenforceable in Germany, which is a signatory to the 1996 Hague Convention.

The mother appealed against Recorder Magennis’s dismissal of her application to relocate with the parties’ two-year-old child from England to Germany. The Recorder had been concerned that relocation would disrupt the child’s relationship with the father and had considered the mother’s financial circumstances and accommodation to be more secure than she claimed.

By the time of the appeal, the mother and child had lived in Germany for approximately six and a half months. The mother would be homeless if required to return to England, while contact with the father had continued by video and through the exchange of photographs and messages. The appeal concerned whether the first-instance decision should stand, whether the matter should be remitted, and where the child’s welfare required him to live.

1. Appeal allowed. The order prohibiting relocation was set aside. Permission to relocate the child to Germany was granted.
2. The Recorder’s judgment had to be read as a whole, and the failure to determine relocation and contact at the same time did not, by itself, make the exercise linear rather than holistic. However, there had been material misunderstandings concerning the effect of the 1996 Hague Convention on enforcement of an English contact order in Germany, and the mother’s financial circumstances, accommodation and lack of settled status in England.
3. The appeal court was dealing with materially different circumstances from those before the Recorder. The mother and child had become settled in Germany; there had been no face-to-face contact with the father; the mother faced homelessness in England; the available English accommodation was unknown; and the feared obstruction of contact by the maternal family had not occurred.
4. In those circumstances, it was in the child’s interests to continue living in Germany with his mother. The extended maternal family, local support and established arrangements materially alleviated the pressures on the mother and supported her ability to care for the child.
5. Rather than remit the matter, the court considered the way forward clear and determined the arrangements itself. By consent, virtual contact was ordered at least twice weekly, together with supervised face-to-face contact on consecutive days once a month, subject to agreement removing supervision. The mother was also required to provide information about the child’s education, health and any inability to care for him.

• High Court (Family Division): Appeal from Recorder Magennis’s order made in the Family Court at West London on 3 May 2023. The appeal was allowed, the relocation prohibition was set aside, and permission to relocate was granted.