Re T (A Child: Application to Permanently Relocate)

In determining whether a child should be returned or permitted to remain abroad, the child’s welfare is paramount. The court must consider the welfare checklist and the parties’ and child’s Convention rights, giving priority to the child’s Article 8 rights where they conflict with a parent’s rights. A return order should not be made where it would be contrary to the child’s welfare, including because of firmly expressed wishes and feelings, settlement abroad, likely separation from the primary carer, or the probable emotional harm caused by enforced return. The court may also refuse to grant leave retrospectively where the application followed wrongful retention and the order would effectively endorse that retention. Welfare decisions may appropriately be left to the courts of the jurisdiction in which the child is habitually resident and welfare proceedings are ongoing.

The applications concerned T, an 11-year-old child, her mother P, her father K, and her paternal grandparents L and N. T had been living in Estonia since late 2020 after the mother took her there and later sought permission for permanent relocation. The father and paternal grandparents sought T’s return to England and Wales, orders for contact, and enforcement of an earlier child arrangements order. The mother opposed return and sought discharge of the grandparents’ contact order.

Concurrent proceedings had taken place in Estonia, including proceedings concerning return and contact. The central questions were whether T should be returned to this jurisdiction, whether the mother should receive leave to remove her permanently, and what orders, if any, should govern T’s relationships with her father and paternal grandparents.

1. Welfare and rights. T’s welfare best interests were paramount under s.1(1) of the Children Act 1989. The relevant welfare checklist factors under s.1(3) were considered. The court also considered the parties’ and T’s Article 6 and Article 8 rights, but where the child’s Article 8 rights conflicted with a parent’s, the child’s rights prevailed, applying Yousef v The Netherlands [2003] 1 FLR.
2. Return to England and Wales. A return would be contrary to T’s welfare. She was mature, happy, settled and well-integrated in Estonia, and had consistently and firmly expressed the wish to remain with her mother. A return against her wishes would risk serious emotional and psychological harm, including worsening the prospects of repairing her relationship with her father and paternal grandparents. The practical prospects of enforcing a return order through the Estonian courts were minimal, and further contested litigation would impose an excessive and potentially irreparable toll on T.
3. Welfare jurisdiction. T was habitually resident in Estonia, had her own representation there, had met the judges dealing with her case, and was the subject of ongoing welfare proceedings in Estonia. Those courts were well placed to decide residence and contact. There was no welfare benefit in continuing parallel applications in this jurisdiction.
4. Wrongful retention and relocation. The mother’s application for leave permanently to remove T was refused and dismissed. The application had been made after wrongful retention, and granting it would effectively endorse that conduct. In any event, the court would have refused the application had it been heard nearer to the time it was made; T had since become settled in Estonia.
5. Orders. The father’s applications for contact, return, and return under Articles 11(6) to 11(8) of Brussels II Revised were dismissed. The grandparents’ child arrangements order was discharged and their enforcement application dismissed.